15698 Federal Register / Vol. 87, No. 53 / Friday, March 18, 2022 / Proposed Rules 

1Available at: https://www.justice.gov/sites/ 

default/files/olc/opinions/1981/06/31/op-olc-v005- 

p0174_0.pdf. 

2The DBA and the Related Acts apply to both 

prime contracts and subcontracts of any tier 

thereunder. In this NPRM, as in the regulations 

themselves, where the terms ‘‘contracts’’ or 

‘‘contractors’’ are used, they are intended to include 

reference to subcontracts and subcontractors of any 

tier. 

DEPARTMENT OF LABOR 

Office of the Secretary 

29 CFR Parts 1, 3, and 5 

RIN 1235–AA40 

Updating the Davis-Bacon and Related 

Acts Regulations 

AGENCY: Wage and Hour Division, 

Department of Labor. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Labor 

(Department) proposes to amend 

regulations issued under the DavisBacon and Related Acts that set forth 

rules for the administration and 

enforcement of the Davis-Bacon labor 

standards that apply to Federal and 

federally assisted construction projects. 

As the first comprehensive regulatory 

review in nearly 40 years, the 

Department believes that revisions to 

these regulations are needed to provide 

greater clarity and enhance their 

usefulness in the modern economy. 

DATES: Interested persons are invited to 

submit written comments on this notice 

of proposed rulemaking (NPRM) on or 

before May 17, 2022. 

ADDRESSES: You may submit comments, 

identified by Regulatory Information 

Number (RIN) 1235–AA40, by either of 

the following methods: 

• Electronic Comments: Submit 

comments through the Federal 

eRulemaking Portal at https://

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Address written submissions 

to: Division of Regulations, Legislation, 

and Interpretation, Wage and Hour 

Division, U.S. Department of Labor, 

Room S–3502, 200 Constitution Avenue 

NW, Washington, DC 20210. 

Instructions: Response to this NPRM 

is voluntary. The Department requests 

that no business proprietary 

information, copyrighted information, 

or personally identifiable information be 

submitted in response to this NPRM. 

Commenters submitting file attachments 

on https://www.regulations.gov are 

advised that uploading text-recognized 

documents—i.e., documents in a native 

file format or documents which have 

undergone optical character recognition 

(OCR)—enable staff at the Department to 

more easily search and retrieve specific 

content included in your comment for 

consideration. 

Anyone who submits a comment 

(including duplicate comments) should 

understand and expect that the 

comment will become a matter of public 

record and will be posted without 

change to https://www.regulations.gov, 

including any personal information 

provided. The Wage and Hour Division 

(WHD) posts comments gathered and 

submitted by a third-party organization 

as a group under a single document ID 

number on https://www.regulations.gov. 

All comments must be received by 11:59 

p.m. on May 17, 2022, for consideration 

in this rulemaking; comments received 

after the comment period closes will not 

be considered. 

The Department strongly recommends 

that commenters submit their comments 

electronically via https://

www.regulations.gov to ensure timely 

receipt prior to the close of the comment 

period, as the Department continues to 

experience delays in the receipt of mail. 

Please submit only one copy of your 

comments by only one method. 

Docket: For access to the docket to 

read background documents or 

comments, go to the Federal 

eRulemaking Portal at https://

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Amy DeBisschop, Director, Division of 

Regulations, Legislation, and 

Interpretation, Wage and Hour Division, 

U.S. Department of Labor, Room S– 

3502, 200 Constitution Avenue NW, 

Washington, DC 20210; telephone: (202) 

693–0406 (this is not a toll-free 

number). Copies of this proposal may be 

obtained in alternative formats (Rich 

Text Format (RTF) or text format (txt), 

a thumb drive, an MP3 file, large print, 

braille, audiotape, compact disc, or 

other accessible format), upon request, 

by calling (202) 693–0675 (this is not a 

toll-free number). TTY/TDD callers may 

dial toll-free 1–877–889–5627 to obtain 

information or request materials in 

alternative formats. 

Questions of interpretation or 

enforcement of the agency’s existing 

regulations may be directed to the 

nearest WHD district office. Locate the 

nearest office by calling the WHD’s tollfree help line at (866) 4US–WAGE ((866) 

487–9243) between 8 a.m. and 5 p.m. in 

your local time zone, or log onto WHD’s 

website at https://www.dol.gov/ 

agencies/whd/contact/local-offices for a 

nationwide listing of WHD district and 

area offices. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

In order to provide greater clarity and 

enhance their usefulness in the modern 

economy, the Department proposes to 

update and modernize the regulations at 

29 CFR parts 1, 3, and 5, which 

implement the Davis-Bacon Act and the 

Davis-Bacon Related Acts (collectively, 

the DBRA). The Davis-Bacon Act (DBA 

or Act), enacted in 1931, requires the 

payment of locally prevailing wages and 

fringe benefits on Federal contracts for 

construction. See 40 U.S.C. 3142. The 

DBA applies to workers on contracts 

entered into by Federal agencies and the 

District of Columbia that are in excess 

of $2,000 and for the construction, 

alteration, or repair of public buildings 

or public works. Congress subsequently 

incorporated DBA prevailing wage 

requirements into numerous statutes 

(referred to as ‘‘Related Acts’’) under 

which Federal agencies assist 

construction projects through grants, 

loans, loan guarantees, insurance, and 

other methods. 

The Supreme Court has described the 

DBA as ‘‘a minimum wage law designed 

for the benefit of construction workers.’’ 

United States v. Binghamton Constr. 

Co., 347 U.S. 171, 178 (1954). The Act’s 

purpose is ‘‘to protect local wage 

standards by preventing contractors 

from basing their bids on wages lower 

than those prevailing in the area.’’ 

Universities Research Ass’n, Inc. v. 

Coutu, 450 U.S. 754, 773 (1981) (quoting 

H. Comm. on Educ. and Lab., Legislative 

History of the Davis-Bacon Act, 87th 

Cong., 2d Sess., 1 (Comm. Print 1962)). 

By requiring the payment of minimum 

prevailing wages, Congress sought to 

‘‘ensure that Government construction 

and federally assisted construction 

would not be conducted at the expense 

of depressing local wage standards.’’ 

Determination of Wage Rates Under the 

Davis-Bacon & Serv. Cont. Acts, 5 Op. 

O.L.C. 174, 176 (1981) (citation and 

internal quotation marks omitted).1

Congress has delegated authority to 

the Department to issue prevailing wage 

determinations and prescribe rules and 

regulations for contractors and 

subcontractors on DBA-covered 

construction projects.2 See 40 U.S.C. 

3142, 3145. It has also directed the 

Department, through Reorganization 

Plan No. 14 of 1950, to ‘‘prescribe 

appropriate standards, regulations and 

procedures’’ to be observed by Federal 

agencies responsible for the 

administration of the Davis-Bacon and 

Related Acts. 5 U.S.C. app. 1, effective 

May 24, 1950, 15 FR 3176, 64 Stat. 1267. 

These regulations, which have been 

updated and revised periodically over 

time, are primarily located in parts 1, 3, 


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3See 46 FR 41444 (NPRM); 47 FR 23644 (final 

rule); 48 FR 19532 (revised final rule). 

4The Department maintains a list of the Related 

Acts at [cite website address]. 

5These estimates are discussed below in section 

V (Executive Order 12866, Regulatory Planning and 

Review et al.). 

6See Executive Order 14008, Tackling the 

Climate Crisis at Home and Abroad, § 206 (Jan. 27, 

2021), available at: https://www.whitehouse.gov/ 

briefing-room/presidential-actions/2021/01/27/ 

executive-order-on-tackling-the-climate-crisis-athome-and-abroad/. 

7 Decisions of the ARB from 1996 to the present 

are available on the Department’s website at https:// 

www.dol.gov/agencies/arb/decisions. 

8See Gov’t Accountability Office, GAO–11–152, 

Davis-Bacon Act: Methodological Changes Needed 

to Improve Wage Survey (2011) (2011 GAO Report), 

at 12–19, available at: https://www.gao.gov/ 

products/gao-11-152. 9 Id. at 23–24. 10 Id. at 32–33. 11See Department of Labor, Office of the 

Inspector General, Better Strategies Are Needed to 

Improve the Timeliness and Accuracy of DavisBacon Act Prevailing Wage Rates (2019) (OIG 

Report), at 10, available at: https://

www.oversight.gov/sites/default/files/oig-reports/ 

04-19-001-Davis%20Bacon.pdf. 

12 Gov’t Accountability Office, GAO–21–13, Fair 

Labor Standards Act: Tracking Additional 

Complaint Data Could Improve DOL’s Enforcement 

(2020) (2020 GAO Report), at 39, available at: 

https://www.gao.gov/assets/gao-21-13.pdf. 

and 5 of title 29 of the Code of Federal 

Regulations. 

The Department last engaged in a 

comprehensive revision of the 

regulations governing the DBA and the 

Related Acts in a 1981–1982 

rulemaking.3 Since that time, Congress 

has expanded the reach of the DavisBacon labor standards significantly, 

adding numerous new Related Act 

statutes to which these regulations 

apply. The Davis-Bacon Act and now 71 

active Related Acts 4 collectively apply 

to an estimated $217 billion in Federal 

and federally assisted construction 

spending per year and provide 

minimum wage rates for an estimated 

1.2 million U.S. construction workers.5

The Department expects these numbers 

to continue to grow as Federal and State 

governments seek to address the 

significant infrastructure needs of the 

country, including, in particular, the 

energy and transportation infrastructure 

necessary to mitigate climate change.6

In addition to the expansion of the 

prevailing wage rate requirements of the 

DBA and the Related Acts, the Federal 

contracting system itself has undergone 

significant changes since the 1981–1982 

rulemaking. Federal agencies have 

dramatically increased spending 

through interagency Federal schedules 

such as the Multiple Award Schedule 

(MAS). Contractors have increased their 

use of single-purpose entities, such as 

joint ventures and teaming agreements, 

in construction contracts with Federal, 

State and local governments. Federal 

procurement regulations have been 

overhauled and consolidated in the 

Federal Acquisition Regulation (FAR), 

which contains a subsection on the 

Davis-Bacon Act and related contract 

clauses. See 48 CFR 22.400 et seq. Court 

and agency administrative decisions 

have developed and clarified myriad 

aspects of the laws governing Federal 

procurement. 

During the past 40 years, the 

Department’s DBRA program also has 

continued to evolve. Where the program 

initially was focused on individual 

project-specific wage determinations, 

contracting agencies now incorporate 

the Department’s general wage 

determinations for the construction type 

in the locality in which the construction 

project is to occur. The program also 

now uniformly uses wage surveys to 

develop general wage determinations, 

eliminating an earlier practice of 

developing wage determinations based 

solely on other evidence about the 

general level of unionization in the 

targeted area. In a 2006 decision, the 

Department’s Administrative Review 

Board (ARB) identified several surveyrelated wage determination procedures 

then in effect as inconsistent with the 

regulatory language that had resulted 

from the 1981–1982 rulemaking. See 

Mistick Construction, ARB No. 04–051, 

2006 WL 861357, at *5–7 (Mar. 31, 

2006).7 As a consequence of these 

developments, the use of averages of 

wage rates from survey responses has 

increasingly become the methodology 

used to issue new wage 

determinations—notwithstanding the 

Department’s long-held interpretation 

that the DBA allows the use of such 

averages only as a methodology of last 

resort. 

The Department has also received 

significant feedback from stakeholders 

and others since the last comprehensive 

rulemaking. In a 2011 report, the 

Government Accountability Office 

(GAO) reviewed the Department’s wage 

survey and wage determination process 

and found that the Department was 

often behind schedule in completing 

wage surveys, leading to a backlog of 

wage determinations and the use of outof-date wage determinations in some 

areas.8 The report also identified 

dissatisfaction among regulated parties 

regarding the rigidity of the 

Department’s county-based system for 

identifying prevailing rates,9 and 

missing wage rates requiring an overuse 

of ‘‘conformances’’ for wage rates for 

specific job classifications.10 A 2019 

report from the Department’s Office of 

the Inspector General (OIG) made 

similar findings regarding out-of-date 

wage determinations.11

Ensuring that construction workers 

are paid the wages required under the 

DBRA also requires effective 

enforcement in addition to an efficient 

wage determination process. In the last 

decade, enforcement efforts at the 

Department have resulted in the 

recovery of more than $213 million in 

back wages for over 84,000 workers.12

But the Department has also 

encountered significant enforcement 

challenges. Among the most critical of 

these is the omission of DBRA contract 

clauses from contracts that are clearly 

covered by the DBRA. In one recent 

case, a contracting agency agreed with 

the Department that a blanket purchase 

agreement (BPA) it had entered into 

with a contractor had mistakenly 

omitted the Davis-Bacon clauses and 

wage determination—but the 

contracting agency’s struggle to rectify 

the situation led to a delay of 8 years 

before the workers were paid the wages 

they were owed. 

The Department now seeks to address 

a number of these outstanding 

challenges in the program while also 

providing greater clarity in the DBRA 

regulations and enhancing their 

usefulness in the modern economy. In 

this rulemaking, the Department 

proposes to update and modernize the 

regulations implementing the DBRA at 

29 CFR parts 1, 3, and 5. In some of 

these revisions, the Department has 

determined that changes it made in the 

1981–1982 rulemaking were mistaken or 

ultimately resulted in outcomes that are 

increasingly in tension with the DBA 

statute itself. In others, the Department 

seeks to expand further on procedures 

that were introduced in that last major 

revision, or to propose new procedures 

that will increase efficiency of 

administration of the DBRA and 

enhance protections for covered 

construction workers. On all the 

proposed changes, the Department seeks 

comment and participation from the 

many stakeholders in the program. 

The proposed rule includes several 

elements targeted at increasing the 

amount of information available for 

wage determinations and speeding up 

the determination process. In a proposal 

to amend § 1.3 of the regulations, the 

Department outlines a new methodology 

to expressly give the WHD 

Administrator authority and discretion 

to adopt State or local wage 

determinations as the Davis-Bacon 

prevailing wage where certain specified 

criteria are satisfied. Such a change 

would help improve the currentness 

and accuracy of wage determinations, as 

many states and localities conduct 


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13The 1981–1982 rulemaking went into effect on 

April 29, 1983. 48 FR 19532. 

14Available at: https://www.bls.gov/news.release/ 

eci.toc.htm. 

surveys more frequently than the 

Department and have relationships with 

stakeholders that may facilitate the 

process and foster more widespread 

participation. This proposal would also 

increase efficiency and reduce 

confusion for the regulated community 

where projects are covered by both 

DBRA and local or State prevailing wage 

laws and contractors are already 

familiar with complying with the local 

or State prevailing wage requirement. 

The Department also proposes 

changes, in § 1.2, to the definition of 

‘‘prevailing wage,’’ and, in § 1.7, to the 

scope of data considered to identify the 

prevailing wage in a given area. To 

address the overuse of weighted average 

rates, the Department proposes to return 

to the definition of ‘‘prevailing wage’’ in 

§ 1.2 that it used from 1935 to 1983.13

Currently, a single wage rate may be 

identified as prevailing in the area only 

if it is paid to a majority of workers in 

a classification on the wage survey; 

otherwise a weighted average is used. 

The Department proposes to return 

instead to the ‘‘three-step’’ method that 

was in effect before 1983. Under that 

method (also known as the 30-percent 

rule), in the absence of a wage rate paid 

to a majority of workers in a particular 

classification, a wage rate will be 

considered prevailing if it is paid to at 

least 30 percent of such workers. The 

Department also proposes to return to a 

prior policy on another change made 

during the 1981–1982 rulemaking 

related to the delineation of wage survey 

data submitted for ‘‘metropolitan’’ or 

‘‘rural’’ counties in § 1.7(b). Through 

this change, the Department seeks to 

more accurately reflect modern labor 

force realities, to allow more wage rates 

to be determined at smaller levels of 

geographical aggregation, and to 

increase the sufficiency of data at the 

statewide level. 

Proposed revisions to §§ 1.3 and 5.5 

are aimed at reducing the need for the 

use of ‘‘conformances’’ where the 

Department has received insufficient 

data to publish a prevailing wage for a 

classification of worker—a process that 

currently is burdensome on contracting 

agencies, contractors, and the 

Department. The proposed revisions 

would create a new procedure through 

which the Department may identify 

(and list on the wage determination) 

wage and fringe benefit rates for certain 

classifications for which WHD received 

insufficient data through its wage 

survey program. The procedure should 

reduce the need for conformances for 

classifications for which conformances 

are often required. 

The Department also proposes to 

revise § 1.6(c)(1) to provide a 

mechanism to regularly update certain 

non-collectively bargained prevailing 

wage rates based on the Bureau of Labor 

Statistics Employment Cost Index.14

The mechanism is intended to keep 

such rates more current between 

surveys so that they do not become outof-date and fall behind prevailing rates 

in the area. 

The Department also seeks to 

strengthen enforcement in several 

critical ways. The proposed rule seeks 

to address the challenges caused by the 

omission of contract clauses. In a 

manner similar to its rule under 

Executive Order 11246 (Equal 

Employment Opportunity), the 

Department proposes to designate the 

DBRA contract clauses in § 5.5(a) and 

(b), and applicable wage determinations, 

as effective by ‘‘operation of law’’ 

notwithstanding their mistaken 

omission from a contract. This proposal 

is an extension of the retroactive 

modification procedures that were put 

into effect in § 1.6 by the 1981–1982 

rulemaking, and it promises to expedite 

enforcement efforts to ensure the timely 

payment of prevailing wages to all 

workers who are owed such wages 

under the relevant statutes. 

In addition, the Department proposes 

to include new anti-retaliation 

provisions in the Davis-Bacon contract 

clauses in new paragraphs at 

§§ 5.5(a)(11) (DBRA) and 5.5(b)(5) 

(Contract Work Hours and Safety 

Standards Act), and in a new section of 

part 5 at § 5.18. The new language is 

intended to ensure that workers who 

raise concerns about payment practices 

or assist agencies or the Department in 

investigations are protected from 

termination or other adverse 

employment actions. 

Finally, to reinforce the remedies 

available when violations are 

discovered, the Department proposes to 

clarify and strengthen the crosswithholding procedure for recovering 

back wages. The proposal does so by 

including new language in the 

withholding contract clauses at 

§§ 5.5(a)(2) (DBRA) and 5.5(b)(3) 

(Contract Work Hours and Safety 

Standards Act) to clarify that crosswithholding may be accomplished on 

contracts held by agencies other than 

the agency that awarded the contract. 

The proposal also seeks to create a 

mechanism through which contractors 

will be required to consent to crosswithholding for back wages owed on 

contracts held by different but related 

legal entities in appropriate 

circumstances—if, for example, those 

entities are controlled by the same 

controlling shareholder or are joint 

venturers or partners on a Federal 

contract. The proposed revisions 

include, as well, a harmonization of the 

DBA and Related Act debarment 

standards. 

II. Background 

A. Statutory and Regulatory History 

The Davis-Bacon Act, as enacted in 

1931 and subsequently amended, 

requires the payment of minimum 

prevailing wages determined by the 

Department of Labor to laborers and 

mechanics working on Federal contracts 

in excess of $2,000 for the construction, 

alteration, or repair, including painting 

and decorating, of public buildings and 

public works. See 40 U.S.C. 3141 et seq. 

Congress has also included the DavisBacon requirements in numerous other 

laws, known as the Davis-Bacon Related 

Acts (the Related Acts and, collectively 

with the Davis-Bacon Act, the DBRA), 

which provide Federal assistance for 

construction projects through grants, 

loans, loan guarantees, insurance, and 

other methods. Congress intended the 

Davis-Bacon Act to ‘‘protect local wage 

standards by preventing contractors 

from basing their bids on wages lower 

than those prevailing in the area.’’ 

Coutu, 450 U.S. at 773 (quoting H. 

Comm. on Educ. and Lab., Legis. 

History of the Davis-Bacon Act, 87th 

Cong., 2d Sess., 1 (Comm. Print 1962)). 

The Copeland Act, enacted in 1934, 

added the requirement that contractors 

working on Davis-Bacon projects must 

submit weekly certified payrolls for 

work performed on the contract. See 40 

U.S.C. 3145. The Copeland Act also 

prohibited contractors from inducing 

any worker to give up any portion of the 

wages due to them on such projects. See 

18 U.S.C. 874. In 1962, Congress passed 

the Contract Work Hours and Safety 

Standards Act, which, as amended, 

requires an overtime payment of 

additional half-time for hours worked 

over forty in the workweek by laborers 

and mechanics, including watchmen 

and guards, on Federal contracts or 

federally assisted contracts containing 

Federal prevailing wage standards. See 

U.S.C. 3701 et seq. 

As initially enacted, the DBA did not 

take into consideration the provision of 

fringe benefits to workers. In 1964, 

Congress expanded the Act to require 

the Department to include an analysis of 

fringe benefits as part of the wage 

determination process. The amendment 


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15See 29 FR 13462 (Sept. 30, 1964); 46 FR 41444– 

70 (NPRM parts 1 and 5) (Aug. 14, 1981); 47 FR 

23644–79 (final rule parts 1, 3, and 5) (May 28, 

1982). The Department also proposed a significant 

revision of parts 1 and 5 of the regulations in 1979 

and issued a final rule in 1981. See 44 FR 77026 

(NPRM Part 1); 44 FR 77080 (NPRM part 5); 46 FR 

4306 (final rule part 1); 46 FR 4380 (final rule part 

5). That 1981 final rule, however, was delayed and 

subsequently replaced by the 1981–1982 

rulemaking. The 1982 final rule was delayed by 

litigation and re-published with amendments in 

1983. 48 FR 19532 (Apr. 29, 1983). 

16The Manual of Operations is a 1986 guidance 

document that is still used internally for reference 

within WHD. The Prevailing Wage Resource Book 

is a 2015 document that is intended to provide 

practical information to contracting agencies and 

other interested parties, and is available at https:// 

www.dol.gov/agencies/whd/government-contracts/ 

prevailing-wage-resource-book. 17Available at: https://www.hud.gov/sites/dfiles/ 

OCHCO/documents/Work-Schedule-Request.pdf. 

requires contractors and subcontractors 

to provide fringe benefits (such as 

vacation pay, sick leave, health 

insurance, and retirement benefits), or 

the cash equivalent thereof, to their 

workers at the level prevailing for the 

labor classification on projects of a 

similar character in the locality. See Act 

of July 2, 1964, Public Law 88–349, 78 

Stat 238. 

Congress has delegated broad 

rulemaking authority under the DBRA 

to the Department of Labor. The DBA, 

as amended, contemplates regulatory 

and administrative action by the 

Department to determine the prevailing 

wages that must be paid and to 

‘‘prescribe reasonable regulations’’ for 

contractors and subcontractors. 40 

U.S.C. 3142(b); 40 U.S.C. 3145. Congress 

also, through Reorganization Plan No. 

14 of 1950, directed the Department to 

‘‘prescribe appropriate standards, 

regulations and procedures’’ to be 

observed by Federal agencies 

responsible for the administration of the 

Davis-Bacon and Related Acts. 5 U.S.C. 

app. 1. 

The Department promulgated its 

initial regulations implementing the Act 

in 1935 and has since periodically 

revised them. See U.S. Department of 

Labor, Regulations No. 503 (Sept. 30, 

1935). In 1938, these initial regulations, 

which set forth the procedures for the 

Department to follow in determining 

prevailing wages, were included in part 

1 of Title 29 of the new Code of Federal 

Regulations. See 29 CFR 1.1 et seq. 

(1938). The Department later added 

regulations to implement the payroll 

submission and anti-kickback 

provisions of the Copeland Act—first in 

part 2 and then relocated to part 3 of 

Title 29. See 6 FR 1210 (Mar. 1, 1941); 

7 FR 687 (Feb. 4, 1942); 29 CFR part 2 

(1942); 29 CFR part 3 (1943). After 

Reorganization Plan No. 14 of 1950, the 

Department issued regulations setting 

forth procedures for the administration 

and enforcement of the Davis-Bacon and 

Related Acts in a new part 5. 16 FR 4430 

(May 12, 1951); 29 CFR part 5. The 

Department made significant revisions 

to the regulations in 1964, and again in 

the 1981–1982 rulemaking.15

While the Department has made 

periodic revisions to the regulations in 

recent years, such as to better protect 

the personal privacy of workers, 73 FR 

77511 (Dec. 19, 2008); to remove 

references to the ‘‘Employment 

Standards Administration,’’ 82 FR 2225 

(Jan. 9, 2017); and to adjust Federal civil 

money penalties, 81 FR 43450 (July 1, 

2016), 83 FR 12 (Jan. 2, 2018), 84 FR 218 

(Jan. 23, 2019), the Department has not 

engaged in a comprehensive review and 

revision since the 1981–1982 

rulemaking. 

B. Overview of the Davis-Bacon Program 

The Wage and Hour Division (WHD), 

an agency within the U.S. Department of 

Labor, administers the Davis-Bacon 

program for the Department. WHD 

carries out its responsibilities in 

partnership with the Federal agencies 

that enter into direct DBA-covered 

contracts for construction and/or 

administer Federal assistance that is 

covered by the Related Acts to State and 

local governments and other funding 

recipients. The State and local 

governmental agencies and authorities 

also have important responsibilities in 

administering Related Act program 

rules, as they manage programs through 

which covered funding flows or the 

agencies themselves directly enter into 

covered contracts for construction. 

The DBRA program includes three 

basic components in which these 

government entities have 

responsibilities: (1) Wage surveys and 

wage determinations; (2) contract 

formation and administration; and (3) 

enforcement and remedies. 

1. Wage Surveys and Determinations 

The DBA delegates to the Secretary of 

Labor the responsibility to determine 

the wage rates that are ‘‘prevailing’’ for 

each classification of covered laborers 

and mechanics on similar projects ‘‘in 

the civil subdivision of the State in 

which the work is to be performed.’’ 40 

U.S.C. 3142(b). WHD carries out this 

responsibility for the Department 

through its wage survey program, and 

derives the prevailing wage rates from 

survey information that responding 

contractors and other interested parties 

voluntarily provide. The program is 

carried out in accordance with the 

program regulations in part 1 of Title 29, 

see 29 CFR 1.1 through 1.7, and its 

procedures are described in guidance 

documents such as the ‘‘Davis-Bacon 

Construction Wage Determinations 

Manual of Operations’’ (1986) (Manual 

of Operations) and ‘‘Prevailing Wage 

Resource Book’’ (2015) (PWRB).16

Although part 1 of the regulations 

provides the authority for WHD to 

create project-specific wage 

determinations, such project wage 

determinations, once more common, 

now are rarely employed. Instead, 

nearly all wage determinations are 

general wage determinations issued for 

general types of construction (building, 

residential, highway, and heavy) and 

applicable to a specific geographic area. 

General wage determinations can be 

incorporated into the vast majority of 

contracts and create uniform application 

of the DBRA for that area. 

2. Contract Formation and 

Administration 

The Federal agencies that enter into 

DBA-covered contracts or administer 

Related Act programs have the initial 

responsibility to determine whether a 

contract is covered by the DBA or one 

of the Related Acts and identify the 

contract clauses and the applicable 

wage determinations that must be 

included in the contract. See 29 CFR 

1.6(b). In addition to the Department’s 

regulations, this process is also guided 

by parallel regulations in part 22 of the 

Federal Acquisition Regulation (FAR) 

for those contracts that are subject to the 

FAR. See 48 CFR part 22. Federal 

agencies also maintain their own 

regulations and guidance governing 

agency-specific aspects of the process. 

See, e.g., 48 CFR subpart 222.4 

(Defense); 48 CFR subpart 622.4 (State); 

U.S. Department of Housing and Urban 

Development, HUD Handbook 1344.1, 

Federal Labor Standards Requirements 

in Housing and Urban Development 

Programs (2013).17

Where contracting agencies or 

interested parties have questions about 

such matters as coverage under the 

DBRA or the applicability of the 

appropriate wage determination to a 

specific contract, they are directed to 

submit those questions to the 

Administrator of WHD (the 

Administrator) for resolution. See 29 

CFR 5.13. The Administrator provides 

periodic guidance on this process, as 

well as other aspects of the DBRA 

program, to contracting agencies and 

other interested parties, particularly 

through All Agency Memoranda 

(AAMs) and ruling letters. In addition, 


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18The Field Operations Handbook reflects 

policies established through changes in legislation, 

regulations, significant court decisions, and the 

decisions and opinions of the WHD Administrator. 

It is not used as a device for establishing 

interpretive policy. Chapter 15 of the FOH covers 

the DBRA, including CWHSSA, and is available at 

https://www.dol.gov/agencies/whd/field-operationshandbook/Chapter-15. 

19 In addition to reviewing liability 

determinations and debarment, the ARB and the 

courts also have jurisdiction to review general wage 

determinations. Judicial review, however, is strictly 

limited to any procedural irregularities, as there is 

no jurisdiction to review the substantive correctness 

of a wage determination under the DBA. See 

Binghamton Constr. Co., 347 U.S. at 177. 

the Department maintains a guidance 

document, the Field Operations 

Handbook (FOH), to provide external 

and internal guidance for the regulated 

community and for WHD investigators 

and staff on contract administration and 

enforcement policies.18

During the administration of a DBRAcovered contract, contractors and 

subcontractors are required to provide 

certified payrolls to the contracting 

agency to demonstrate their compliance 

with the incorporated wage 

determinations on a weekly basis. See 

generally 29 CFR part 3. Contracting 

agencies have the duty to ensure 

compliance by engaging in periodic 

audits or investigations of contracts, 

including examinations of payroll data 

and confidential interviews with 

workers. See 29 CFR 5.6. Prime 

contractors have the responsibility for 

the compliance of all the subcontractors 

on a covered prime contract. 29 CFR 

5.5(a)(6). WHD conducts investigations 

of covered contracts, which include 

determining if the DBRA contract 

clauses or appropriate wage 

determinations were mistakenly omitted 

from the contract. See 29 CFR 1.6(f). If 

WHD determines that there was such an 

omission, it will request that the 

contracting agency either terminate and 

resolicit the contract or modify it to 

incorporate the required clauses or wage 

determinations retroactively. Id. 

3. Enforcement and Remedies 

In addition to WHD, contracting 

agencies have enforcement authority 

under the DBRA. When a contracting 

agency’s investigation reveals 

underpayments of wages of the DBA or 

one of the Related Acts, the Federal 

agency generally is required to provide 

a report of its investigation to WHD, and 

to seek to recover the underpayments 

from the contractor responsible. See 29 

CFR 5.6(a)(1), 5.7. If violations 

identified by the contracting agency or 

by WHD through its own investigation 

are not promptly remedied, contracting 

agencies are required to suspend 

payment on the contract until sufficient 

funds are withheld to compensate the 

workers for the underpayments. 29 CFR 

5.9. The DBRA contract clauses also 

provide for ‘‘cross-withholding’’ if 

sufficient funds are no longer available 

on the contract under which the 

violations took place. Under this 

procedure, funds may be withheld from 

any other covered Federal contract held 

by the same prime contractor in order to 

remedy the underpayments on the 

contract at issue. See 29 CFR 5.5(a)(2), 

(b)(3). Contractors that violate the DBRA 

may also be subject to debarment from 

future Federal contracts. See 29 CFR 

5.12. 

Where WHD conducts an 

investigation and finds that violations 

have occurred, it will notify the affected 

prime contractor and subcontractors of 

the findings of the investigation— 

including any determination that 

workers are owed wages and whether 

there is reasonable cause to believe the 

contractor may be subject to debarment. 

See 29 CFR 5.11(b). Contractors can 

request a hearing regarding these 

findings through the Department’s 

Office of Administrative Law Judges 

(OALJ) and may appeal any ruling by 

the OALJ to the Department’s 

Administrative Review Board (ARB). 

Id.; see also 29 CFR parts 6 and 7 (OALJ 

and ARB rules of practice for DavisBacon proceedings). Decisions of the 

ARB are final agency actions that may 

be reviewable under the Administrative 

Procedure Act in Federal district court. 

See 5 U.S.C. 702, 704.19

III. Discussion of Proposed Rule 

A. Legal Authority 

The Davis-Bacon Act, as enacted in 

1931 and subsequently amended, 

requires the payment of certain 

minimum ‘‘prevailing’’ wages 

determined by the Department of Labor 

to laborers and mechanics working on 

Federal contracts in excess of $2,000 for 

the construction, alteration, or repair, 

including painting and decorating, of 

public buildings and public works. See 

40 U.S.C. 3141 et seq. The DBA 

authorizes the Secretary of Labor to 

develop a definition for the term 

‘‘prevailing’’ wage and a methodology 

for setting it based on similar projects in 

the civil subdivision of the State in 

which a covered project will occur. See 

40 U.S.C. 3142(b); Bldg. & Constr. 

Trades’ Dep’t, AFL–CIO v. Donovan, 712 

F.2d 611, 616 (D.C. Cir. 1983). 

The Secretary of Labor has the 

responsibility to ‘‘prescribe reasonable 

regulations’’ for contractors and 

subcontractors on covered projects. 40 

U.S.C. 3145. The Secretary, through 

Reorganization Plan No. 14 of 1950, also 

has the responsibility to ‘‘prescribe 

appropriate standards, regulations and 

procedures’’ to be observed by Federal 

agencies responsible for the 

administration of the Davis-Bacon and 

Related Acts ‘‘[i]n order to assure 

coordination of administration and 

consistency of enforcement of the labor 

standards provisions’’ of the DBRA. 5 

U.S.C. app. 1. 

The Secretary has delegated authority 

to promulgate these regulations to the 

Administrator of the WHD and to the 

Deputy Administrator of the WHD if the 

Administrator position is vacant. See 

Secretary’s Order No. 01–2014, 79 FR 

77527 (Dec. 24, 2014); Secretary’s Order 

No. 01–2017, 82 FR 6653 (Jan. 19, 2017). 

B. Overview of the Proposed Rule 

1. 29 CFR Part 1 

The procedural rules providing for the 

payment of minimum wages, including 

fringe benefits, to laborers and 

mechanics engaged in construction 

activity covered by the Davis-Bacon and 

Related Acts are set forth in 29 CFR part 

1. The regulations in this part also set 

forth the procedures for making and 

applying such determinations of 

prevailing wage rates and fringe 

benefits. 

i. Section 1.1 Purpose and Scope 

The Department proposes technical 

revisions to § 1.1 to update the statutory 

reference to the Davis-Bacon Act, now 

recodified at 40 U.S.C. 3141 et seq. The 

Department also proposes to eliminate 

outdated references to the Deputy Under 

Secretary of Labor for Employment 

Standards at the Employment Standards 

Administration. The Employment 

Standards Administration was 

eliminated as part of an agency 

reorganization in 2009 and its 

authorities and responsibilities were 

devolved into its constituent 

components, including the WHD. See 

Secretary’s Order No. 09–2009 (Nov. 6, 

2009), 74 FR 58836 (Nov. 13, 2009), 82 

FR 2221 (Jan. 9, 2017). The Department 

further proposes to revise § 1.1 to reflect 

the removal of Appendix A of part 1, as 

discussed further below. The 

Department also proposes to add new 

paragraph (a)(1) to reference the WHD 

website (https://www.dol.gov/agencies/ 

whd/government-contracts) on which a 

listing of laws requiring the payment of 

wages at rates predetermined by the 

Secretary of Labor under the DavisBacon Act is currently found. 


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20 Implemented Apr. 29, 1983. See 48 FR 19532. 

21Administration of the Davis Bacon Act: 

Hearings before the Spec. Subcomm. of Lab. of the 

H. Comm. on Educ. and Lab., 87th Cong. 811–12 

(1962) (testimony of Charles Donahue, Solicitor of 

Labor). 

22See, e.g., Act of Mar. 23, 1941, ch. 26, 55 Stat. 

53 (1941) (applying the Act to alternative contract 

types); Contract Work Hours and Safety Standards 

Act of 1962, Public Law 87–581, 76 Stat. 357 (1962) 

(requiring payment of overtime on contracts 

covered by the Act); Act of July 2, 1964, Public Law 

88–349, 78 Stat. 238 (1964) (extending the Act to 

cover fringe benefits); 29 CFR 5.1 (referencing 57 

Related Acts into which Congress incorporated 

Davis-Bacon Act requirements between 1935 and 

1978). 

23See note 1, supra. 

24See Robert S. Goldfarb & John F. Morrall, ‘‘An 

Analysis of Certain Aspects of the Administration 

of the Davis-Bacon Act,’’ Council on Wage and 

Price Stability (May 1976), reprinted in Bureau of 

Nat’l Affs., Construction Labor Report, No. 1079, D– 

1, D–2 (1976). 25See Oversight Hearing on the Davis-Bacon Act, 

Before the Subcomm. on Lab. Standards of the H. 

Comm. on Educ. and Lab., 96th Cong. 58 (1979) 

(statement of Ray Marshall, Secretary of Labor) 

(discussing study of 1978 determinations showing 

only 24 percent of classification rates were based 

on the 30-percent rule); Jerome Staller, 

‘‘Communications to the Editor,’’ Policy Analysis, 

Vol. 5, No. 3 (Summer 1979), pp. 397–98 (noting 

that 60 percent of determinations in the internal 

Department 1976 and 1978 studies were based on 

the 30-percent rule or the average-rate rule). The 

authors of the Council on Wage and Price Stability 

study, however, pointed out that the Department’s 

figures were for rates that had been based on survey 

data, while 57 percent of rates in the mid-1970’s 

were based solely on CBAs without the use of 

surveys (a practice that the Department no longer 

uses to determine new rates). See Robert S. Goldfarb 

& John F. Morrall II., ‘‘The Davis-Bacon Act: An 

Appraisal of Recent Studies,’’ 34 Indus. & Lab. Rel. 

Rev. 191, 199–200 & n.35 (1981). Thus, the actual 

percentage of annual classification determinations 

that were based on average rule before 1982 may 

have been as low as 15 percent, and the percent 

based on the average rule after 1982 would have 

been expected to be around 26 percent. 

26See below section V (Executive Order 12866, 

Regulatory Planning and Review et al.). 

ii. Section 1.2 Definitions 

(A) Prevailing Wage 

The Department proposes to redefine 

the term ‘‘prevailing wage’’ in § 1.2 to 

return to the original methodology for 

determining whether a wage rate is 

prevailing. This original methodology 

has been referred to as the ‘‘three-step 

process.’’ 

Since 1935, the Secretary has 

interpreted the word ‘‘prevailing’’ in the 

Davis-Bacon Act to be consistent with 

the common understanding of the term 

as meaning ‘‘predominant’’ or ‘‘most 

frequent.’’ From 1935 until the 1981– 

1982 rulemaking, the Department 

employed a three-step process to 

identify the most frequently used wage 

rate for each classification of workers in 

a locality. See Regulation 503 section 2 

(1935); 47 FR 23644.20 This three-step 

process identified as prevailing: (1) Any 

wage rate paid to a majority of workers; 

and, if there was none, then (2) the wage 

rate paid to the greatest number of 

workers, provided it was paid to at least 

30 percent of workers, and, if there was 

none, then (3) the weighted average rate. 

The second step is referred to as the 

‘‘30-percent rule.’’ 

The three-step process relegated the 

average rate to a final, fallback method 

of determining the prevailing wage. In 

1962 congressional testimony, Solicitor 

of Labor Charles Donahue explained the 

reasoning for this sequence in the 

determination: An average rate ‘‘does 

not reflect a true rate which is actually 

being paid by any group of contractors 

in the community being surveyed.’’ 

Instead, ‘‘it represents an artificial rate 

which we create ourselves, and which 

does not reflect that which a 

predominant amount of workers are 

paid.’’ 21

In 1982, the Department published a 

final rule that amended the definition of 

‘‘prevailing wage’’ by eliminating the 

second step in the three-step process— 

the 30-percent rule. See 47 FR 23644. 

The new process required only two 

steps: First identifying if there was a 

single wage rate paid to more than 50 

percent of workers, and then, if not, 

relying on a weighted average of all the 

wage rates paid. Id. at 23644–45. 

In eliminating the 30-percent rule, 

however, the Department did not 

change its underlying interpretation of 

the word ‘‘prevailing’’—that it means 

‘‘the most widely paid rate’’ must be the 

‘‘definition of first choice’’ for the 

prevailing wage. 47 FR 23645. While the 

1982 rule continued to allow the 

Department to use an average rate as a 

fallback, the Department rejected 

commenters’ suggestions that the 

weighted average could be used in all 

cases. See 47 FR 23644–45. As the 

Department explained, this was because 

the term ‘‘prevailing’’ contemplates that 

wage determinations mirror, to the 

extent possible, those rates ‘‘actually 

paid’’ to workers. 47 FR 23645. 

This interpretation—that the 

definition of first choice for the term 

‘‘prevailing wage’’ should be an actual 

wage rate that is most widely paid—has 

now been shared across administrations 

for over 85 years. In the intervening 

decades, Congress has amended and 

expanded the reach of the Act’s 

prevailing wage requirements dozens of 

times without altering the term 

‘‘prevailing’’ or the grant of broad 

authority to the Secretary of Labor to 

define it.22 In addition, the question was 

also reviewed by the Office of Legal 

Counsel (OLC) at the Department of 

Justice, which independently reached 

the same conclusions: ‘‘prevailing 

wage’’ means the current and 

predominant actual rate paid, and an 

average rate should only be used as a 

last resort. See 5 Op. O.L.C. at 176–77.23

In the 1982 final rule, when the 

Department eliminated the 30-percent 

rule, it anticipated that this change 

would increase the use of artificial 

average rates. 47 FR 23648–49. 

Nonetheless, the Department believed a 

change was preferable because the 30- 

percent threshold could in some cases 

not account for up to 70 percent of the 

remaining workers. See 46 FR 41444. 

The Department also stated that it 

agreed with the concerns expressed by 

certain commenters that the 30-percent 

rule was ‘‘inflationary’’ and gave 

‘‘undue weight to collectively bargained 

rates.’’ 47 FR 23644–45. 

Now, however, after reviewing the 

development of the Davis-Bacon Act 

program since the 1981–1982 

rulemaking, the Department concludes 

that eliminating the 30-percent rule 

ultimately resulted in an overuse of 

average rates. On paper, the weighted 

average remains the fallback method to 

be used only when there is no majority 

rate. In practice, though, it has become 

a central mechanism to set the 

prevailing wage rates included in DavisBacon wage determinations and covered 

contracts. 

Prior to the 1982 rule change, the use 

of averages was relatively rare. In a Ford 

Administration study of Davis-Bacon 

Act prevailing wage rates in 

commercial-type construction in 19 

cities, none of the rates were based on 

averages because all of the wage rates 

were ‘‘negotiated’’ rates, i.e., based on 

CBAs that represented a predominant 

wage rate in the locality.24 The 

Department estimates that prior to the 

1982 final rule, as low as 15 percent of 

classification rates across all wage 

determinations were based on averages. 

After the 1982 rule was implemented, 

the use of averages may have initially 

increased to approximately 26 percent 

of all wage determinations.25

The Department’s current use of 

weighted averages is now significantly 

higher than this 26 percent figure. To 

analyze the current use of weighted 

averages and the potential impacts of 

this rulemaking, the Department 

compiled data for select classifications 

for 17 recent wage surveys—nearly all of 

the completed surveys that WHD began 

in 2015 or later. The data show that the 

Department’s reliance on average rates 

has increased significantly, and now 

accounts for 64 percent of the observed 

classification determinations in this 

recent time period.26

The Department believes that such an 

overuse of weighted averages is 


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27For example, the 2001 wage determination for 

electricians in Eddy County, New Mexico was an 

average rate based on responses that included 

lower-paid workers that had been brought in from 

Texas by a Texas electrical contractor to work on 

a single job. As the ARB noted in reviewing a 

challenge to the wage determination, the result was 

that ‘‘contract labor from Texas, where wages 

reportedly are lower, effectively has determined the 

prevailing wage for electricians in this New Mexico 

county.’’ New Mexico Nat. Elec. Contractors Ass’n, 

ARB No. 03–020, 2004 WL 1261216, at * 8 (May 28, 

2004). 

28The 30-percent rule can only be characterized 

as ‘‘ignoring’’ rates because it is a rule that applies 

a mathematical ‘‘mode,’’ in which the only relevant 

value is the value of the number that appears most 

frequently—instead of a mean (average), in which 

the values of all the numbers are averaged together. 

Both the 30-percent rule and the majority rule are 

modal rules in which the values of the nonprevailing wage rates do not factor into the final 

analysis. 

29The GAO issued a report in 1979 urging 

Congress to repeal the Act because of ‘‘inflationary’’ 

concerns. See Gov’t Accountability Office, HRD– 

79–18, The Davis Bacon Act Should be Repealed, 

(1979) (1979 GAO Report). Available at: https://

www.gao.gov/assets/hrd-79-18.pdf. The report 

argued that even using only weighted averages for 

prevailing rates would be inflationary because they 

could increase the minimum wage paid on 

contracts and therefore result in wages that were 

higher than they otherwise would be. The House 

Subcommittee on Labor Standards reviewed the 

report during oversight hearings in 1979, but 

Congress did not amend or repeal the Act, and 

instead continued to expand its reach. See, e.g., 

Cranston-Gonzalez National Affordable Housing 

Act, Public Law 101–625, Sec. 811(j)(6), 104 Stat. 

4329 (1990); Energy Independence and Security Act 

of 2007, Public Law. No, 110–140, Sec. 491(d), 121 

Stat. 1651 (2007); American Recovery and 

Reinvestment Act, Public Law 111–5, Sec. 1606, 

123 Stat. 303 (2009); Consolidated Appropriations 

Act of 2021, Public Law 116–260, Sec. 9006(b), 134 

Stat. 1182 (2021). 

30See note 1, supra. 

31The Department has not attempted to assess the 

relative accuracy of this estimate over the decades, 

which would be challenging given the dynamic 

nature of the construction industry and the 

relatively small impact of even $120 million in 

savings. The Department at the time acknowledged 

that its estimate had been heavily criticized by 

commenters and was only a ‘‘best guess’’—in part 

because it could not foresee how close a correlation 

there would be between the wage rates that are 

actually paid on covered contracts and the wage 

determinations that set the Davis-Bacon minimum 

wages. 47 FR 23648. 

inconsistent with both the text and the 

purpose of the Act. It is inconsistent 

with the Department’s longstanding 

interpretation of Congress’s use of the 

word ‘‘prevailing’’ in the text of the 

Act—including the Department’s 

statements in the preamble to the 1982 

rule itself that the definition of first 

choice for the ‘‘prevailing’’ wage should 

be the most widely paid rate that is 

actually paid to workers in the relevant 

locality. If nearly two-thirds of rates that 

are now being published based on 

recent surveys are based on a weighted 

average, it is no longer fair to say that 

it is a fallback method of determining 

the prevailing wage. 

The use of averages as the dominant 

methodology for issuing wage 

determinations is also inconsistent with 

the recognized purpose of the Act ‘‘to 

protect local wage standards by 

preventing contractors from basing their 

bids on wages lower than those 

prevailing in the area.’’ Coutu, 450 U.S. 

at 773 (internal quotation marks and 

citation omitted). Using an average to 

determine the minimum wage rate on 

contracts allows a single low-wage 

contractor in the area to depress wage 

rates on Federal contracts below the 

higher rate that may be generally more 

prevalent in the community—by 

factoring into (and lowering) the 

calculation of the average that is used to 

set the minimum wage rates on local 

Federal contracts.27

To address the increasing tension 

between the current methodology and 

the purpose and definition of 

‘‘prevailing,’’ the Department proposes 

to return to the original three-step 

process. The Department expects that 

re-introducing the 30-percent rule will 

reduce the use of average rates roughly 

by half—from 63 percent to 31 percent. 

The data from the regulatory impact 

analysis included with this NPRM 

below in section V suggests that 

returning to the three-step process will 

continue to result in 36 percent of 

prevailing wage rates based on the 

majority rule, with the balance of 33 

percent based on the 30-percent rule, 

and 31 percent based on the weighted 

average. 

This estimated distribution illustrates 

why the Department is no longer 

persuaded, as it stated in the 1981 

NPRM, that the majority rule is more 

appropriate than the three-step process 

(including the 30-percent rule) because 

the 30-percent rule ‘‘ignores the rate 

paid to up to 70 percent of the workers.’’ 

See 46 FR 41444.28 That 

characterization ignores that the first 

step in the three-step process is still to 

adopt the majority rate if there is one. 

Under both the three-step process and 

the current majority rule, any wage rate 

that is paid to a majority of workers 

would be identified as prevailing. Under 

either method, the weighted average 

will be used whenever there is no wage 

rate that is paid to more than 30 percent 

of employees in the survey response. 

The difference between the majority 

and the three-step methodologies is 

solely in how a wage rate is determined 

when there is no majority, but there is 

a significant plurality wage rate paid to 

between 30 and 50 percent of workers. 

In that circumstance, the current 

‘‘majority’’ rule uses averages instead of 

the rate that is actually paid to that 

significant plurality of the survey 

population. This is true, for example, 

even where the same wage rate is paid 

to 45 percent of workers and no other 

rate is paid to as high a percentage of 

workers. In such circumstances, the 

Department believes that a wage rate 

paid to between 30 and 50 percent of 

workers is clearly more of a 

‘‘prevailing’’ wage rate than an average. 

The Department has also considered 

the other explanations it provided in 

1982 for eliminating the 30-percent rule, 

including any possible upward pressure 

on wages or prices and a perceived 

‘‘undue weight’’ given to collectively 

bargained rates. These explanations are 

no longer persuasive for two 

fundamental reasons. First, the concerns 

appear to be unrelated to the text of the 

statute, and, if anything, contrary to its 

legislative purpose. Second, the 

Department’s estimates of the effects of 

a return to the 30-percent rule suggest 

that the concerns are misplaced. 

The concerns about inflation at the 

time of the 1982 rule were based in part 

on a criticism of the Act itself.29 A 

fundamental purpose of the DavisBacon Act was to limit low-bid 

contractors from depressing local wage 

rates. See 5 U.S. O.L.C. at 176.30 This 

purpose necessarily contemplates an 

increase in wage rates over what could 

otherwise be paid without the 

enactment of the statute. Moreover, the 

effect of maintaining such a prevailing 

rate can just as easily be seen as 

guarding against deflationary effects of 

the use of low-wage contractors— 

instead of resulting in inflation. Staff of 

the H. Subcomm. on Lab., 88th Cong., 

Administration of the Davis-Bacon Act, 

Rep. of the Subcomm. on Lab. of the 

Comm. on Educ. and Lab. (Comm. Print 

1963) (1963 House Committee Report), 

at 2–3. 

The 1982 final rule contained an 

economic analysis that suggested that 

the elimination of the 30-percent rule 

could save $120 million (in 1982 

dollars) in construction costs per year 

through reduced contract costs. 

However, the Department does not 

believe that this 40-year old analysis is 

reliable or accurate.31 For example, the 

analysis did not consider labor market 

forces that could prevent contractors 

from lowering wage rates in the short 

run. The analysis also did not attempt 

to address productivity losses or other 

costs of setting a lower minimum wage. 

For these reasons, the Department does 

not believe that the analysis in the 1982 

final rule implies that the current 

proposed reversion to the 30-percent 

rule would have a significant impact on 


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32The 1979 GAO report about the DBA noted that 

‘‘minimum wage rates [such as the Davis-Bacon Act 

prevailing wage requirements] tend to have an 

inflationary effect on . . . the national economy as 

a whole.’’ 1979 GAO Report, HRD–79–18 at 76, 83– 

84. 

33See, e.g., J.P. Morgan, Why Higher Wages Don’t 

Always Lead to Inflation (Feb. 7, 2018), available 

at: https://www.jpmorgan.com/commercialbanking/insights/higher-wages-inflation; Daniel 

MacDonald & Eric Nilsson, The Effects of Increasing 

the Minimum Wage on Prices: Analyzing the 

Incidence of Policy Design and Context, Upjohn 

Institute working paper; 16–260 (June 2016), 

available at https://research.upjohn.org/up_

workingpapers/260/; Nguyen Viet Cuong, Do 

Minimum Wage Increases Cause Inflation? 

Evidence from Vietnam, ASEAN Economic Bulletin 

Vol. 28, No. 3 (2011), pp. 337–59, available at: 

https://www.jstor.org/stable/41445397; Magnus 

Jonsson & Stefan Palmqvist, Do Higher Wages Cause 

Inflation?, Sveriges Riksbank Working Paper Series 

159 (Apr. 2004), available at: http://

archive.riksbank.se/Upload/WorkingPapers/WP_

159.pdf; Kenneth M. Emery & Chih-Ping Chang, Do 

Wages Help Predict Inflation?, Federal Reserve 

Bank of Dallas, Economic Review First Quarter 

1996 (1996), available at: https://www.dallasfed.org/ 

∼/media/documents/research/er/1996/er9601a.pdf. 

34 In his message accompanying Reorganization 

Plan No. 14, President Truman noted that ‘‘[s]ince 

the principal objective of the plan is more effective 

enforcement of labor standards, it is not probable 

that it will result in savings. But it will provide 

more uniform and more adequate protection for 

workers through the expenditures made for the 

enforcement of the existing legislation.’’ 5 U.S.C. 

app. 1. 

35See below section V (Executive Order 12866, 

Regulatory Planning and Review et al.). As 

discussed in the regulatory impact analysis, the 

Department found that fringe benefits currently do 

not prevail in slightly over half of the classificationcounty observations it reviewed—resulting in no 

required fringe benefit rate for that classification. 

This would be largely unchanged under the 

proposed reversion to the 3-step process, with 

nearly half of classification rates still not requiring 

the payment of fringe benefits. Only about 13 

percent of fringe rates would shift from no fringes 

or an average rate to a modal prevailing fringe rate. 

Overall under the estimate, the percentage of fringe 

benefit rates based on collective bargaining 

agreements would increase from 25 percent to 34 

percent. The percentage of fringe benefit rates not 

based on collective bargaining rates would increase 

from 3 percent to 7 percent. 

contract costs. Even if the Department 

were to rely on this analysis as an 

accurate measure of impact, such 

savings (adjusted to 2019 dollars) would 

only amount to approximately twotenths of a percent of total estimated 

covered contract costs. 

The Department also does not believe 

that the proposed reversion to the 30- 

percent rule would have any noticeable 

impact on overall national inflation 

numbers.32 An illustrative analysis in 

section V.D. shows returning to the 30- 

percent rule will significantly reduce 

the reliance on the weighted average 

method to produce prevailing wage 

rates. Under the 30-percent rule, some 

prevailing wage determinations may 

increase and others decrease, but the 

magnitude of these changes will, 

overall, be negligible. Additionally, 

recent research shows that wage 

increases, particularly at the lower end 

of the distribution, do not cause 

significant economy-wide price 

increases.33 The Department thus does 

not believe that any limited net wage 

increase for the approximately 1.2 

million covered workers (less than 1 

percent of the total national workforce) 

will significantly increase prices or have 

any appreciable effect on the macro 

economy. 

Further, since the DBA legislates that 

minimum wages must be paid to 

workers on construction projects, the 

effect of such requirement is not a 

permissible basis for departing from the 

longstanding interpretation of the plain 

meaning of the term ‘‘prevailing.’’ The 

‘‘basic purpose of the Davis-Bacon Act 

is to protect the wages of construction 

workers even if the effect is to increase 

costs to the [F]ederal [G]overnment.’’ 

Bldg. & Constr. Trades Dep’t, AFL–CIO 

v. Donovan, 543 F. Supp. 1282, 1290 

(D.D.C. 1982). Congress has considered 

cost concerns, and enacted and 

expanded the DBA notwithstanding 

them. Id. at 1290–91; 1963 House 

Committee Report at 2–3; 

Reorganization Plan No. 14 of 1950, 5 

U.S.C. app. 1.34 Thus, even if concerns 

about an inflationary effect on 

government contract costs or 

speculative effects on the national 

macro economy were used to justify 

eliminating the 30-percent rule, the 

Department does not believe such 

reasoning now provides either a factual 

or legal basis to maintain the current 

majority rule. 

The Department is also no longer 

persuaded that the 30-percent rule gives 

undue weight to collectively bargained 

rates. The underlying concern at the 

time was that identification of a single 

prevailing wage could give more weight 

to union rates that more often tend to be 

the same across companies. If this 

occurs, however, it is a function of the 

plain meaning of the statutory term 

‘‘prevailing,’’ which, as both the 

Department and OLC have concluded, 

refers to a predominant single wage rate, 

or a modal wage rate. The same weight 

is given to collectively bargained rates 

whether the Department chooses a 50- 

percent or 30-percent threshold. The 

Department accordingly now 

understands the concerns voiced at the 

time to be concerns about the potential 

outcome (of more wage determinations 

based on union rates) instead of 

concerns about any actual weight given 

to union rates by the choice of the 

modal threshold. To choose a threshold 

because the outcome would be more 

beneficial to non-union contractors—as 

the Department seems to have suggested 

it was doing in 1982—does not have any 

basis in the statute. Donovan, 543 F. 

Supp. at 1291, n.16 (noting that the 

Secretary’s concern about weight to 

collectively bargained rates ‘‘bear[s] no 

relationship to the purposes of the 

statute’’). 

Regardless, the Department’s 

regulatory impact analysis does not 

suggest that a return to the 30-percent 

rule would give undue weight to 

collectively bargained rates. Among a 

sample of rates considered in an 

illustrative analysis, one-third of all 

rates (or about half of rates currently 

established based on weighted averages) 

would shift to a different method. 

Among these rates that would be set 

based on a new method, the majority 

would be based on non-collectively 

bargained rates. Specifically, in the V.D. 

illustration, Department estimates that 

the use of single wage rates that are not 

the product of collective bargaining 

agreements would increase from 12 

percent to 36 percent of all wage rates— 

an overall increase of 24 percentage 

points. The use of single wage rates that 

are based on collective bargaining 

agreements will increase from 25 

percent to 34 percent—an overall 

increase of 9 percentage points.35

The Department has also considered, 

but decided against, proposing to use 

the median wage rate as the 

‘‘prevailing’’ rate. The median, like the 

average (mean), is a number that can be 

unrelated to the wage rate paid with the 

greatest frequency to employees 

working in the locality. Using either the 

median or the average as the primary 

method of determining the prevailing 

rate is not consistent with the meaning 

of the term ‘‘prevailing.’’ Accord 47 FR 

23645. The Department is therefore 

proposing to return to the three-step 

process and the 30-percent rule, and is 

not proposing as alternatives the use of 

either the median or mean as the 

primary or sole methods for making 

wage determinations. 

(1) Former Subsection § 1.2(a)(2) 

In a non-substantive change, the 

Department proposes to move the 

language currently at § 1.2(a)(2) that 

explains the interaction between the 

definition of prevailing wage and the 

sources of information in § 1.3. Under 

the proposed rule, that language (altered 

to update the cross-reference to the 

definition of prevailing wage) would 

now appear in § 1.3. 


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36See note 1, supra. 

37See 1963 House Committee Report, supra, at 7– 

8. 

(2) Variable Rates That Are Functionally 

Equivalent 

The Department also proposes to 

amend the regulations on compiling 

wage rate information at § 1.3 to allow 

for variable rates that are functionally 

equivalent to be counted together for the 

purpose of determining whether a single 

wage rate prevails under the proposed 

definition of ‘‘prevailing wage’’ in § 1.2. 

The Department generally followed this 

proposed approach until after the 2006 

decision of the ARB in Mistick 

Construction. 2006 WL 861357. 

Historically, the Department has 

considered wage rates included in 

survey data that may not be exactly the 

same to be functionally equivalent—and 

therefore counted as the same—as long 

as there was an underlying logic that 

explained the difference between them. 

For example, some workers may 

perform work under the same labor 

classification for the same contractor or 

under the same collective bargaining 

agreement (CBA) on projects in the same 

geographical area being surveyed and 

get paid different wages based on the 

time of day that they performed work— 

e.g., a ‘‘night premium.’’ In that 

circumstance, the Department would 

count the normal and night-premium 

wage rates to be the ‘‘same wage’’ rate 

for purposes of calculating whether that 

wage rate prevailed under the majority 

rule that is discussed in the section 

above. Similarly, where workers in the 

same labor classification were paid 

different ‘‘zone rates’’ for work on 

projects in different zones covered by 

the same CBA, the Department 

considered those rates as compensating 

workers for the burden of traveling or 

staying away from home and did not 

reflect fundamentally different 

underlying wage rates for the work 

actually completed. Variable zone rates 

would therefore be considered the 

‘‘same wage’’ for the purpose of 

determining the prevailing wage rate. 

In another example, the Department 

took into consideration ‘‘escalator 

clauses’’ in CBAs that may have 

increased wage rates across the board at 

some point during the survey period. 

Wages for workers working under the 

same CBA could be reported differently 

on a survey based on the week their 

employer used in responding to the 

wage survey rather than an actual 

difference in prevailing wages. The 

Department has historically treated such 

variable rates the same for the purposes 

of determining the prevailing wages 

paid to laborers or mechanics in the 

survey area. The Department has also 

considered wage rates to be the same 

where workers made the same 

combination of basic hourly rates and 

fringe rates, even if the basic hourly 

rates (and also the fringe rates) differed 

slightly. 

In these circumstances, where the 

Department has treated certain variable 

rates as the same, it has generally 

chosen one of the variable rates to use 

as the prevailing rate. In the case of rates 

that are variable because of an escalatorclause issue, it uses the most current 

rate under the collective bargaining 

agreement. Similarly, where the 

Department identified combinations of 

hourly and fringe rates as the ‘‘same,’’ 

the Department identified one specific 

hourly rate and one specific fringe rate 

that prevailed, following the guidelines 

in 29 CFR 5.24, 5.25, and 5.30. 

In 2006, the ARB strictly interpreted 

the regulatory language of § 1.2(a) in a 

way that has limited some of these 

practices. See Mistick Constr., 2006 WL 

861357, at *5–7. The decision affirmed 

the Administrator’s continued use of the 

escalator-clause rule, but found the use 

of the same combination of basic hourly 

and fringe rates did not amount to 

exactly the ‘‘same’’ wage and thus 

violated the use of the term ‘‘same 

wage’’ in § 1.2(a). The ARB also viewed 

the flexibility shown to collective 

bargaining agreements as inconsistent 

with the ‘‘purpose’’ of the 1982 final 

rule, which the Administrator had 

explained was in part to avoid giving 

‘‘undue weight’’ to collectively 

bargained rates. The ARB held that the 

Administrator could not consider 

variable rates under a collective 

bargaining agreement to be the ‘‘same 

wage’’ under § 1.2(a) as written—and 

therefore, if there was no strictly ‘‘same 

wage’’ that would prevail under the 

majority rule, the Administrator would 

have to use the fallback weighted 

average on the wage determination. 

The ARB’s conclusion in Mistick— 

particularly its determination that even 

wage data reflecting the same aggregate 

compensation but slight variations in 

the basic hourly rate and fringe benefit 

rates did not reflect the ‘‘same wage’’ as 

that term was used under the current 

regulations—could be construed as a 

determination that wage rates need to be 

identical ‘‘to the penny’’ in order to be 

regarded as the ‘‘same wage,’’ and that 

nearly any variation in wage rates, no 

matter how small and regardless of the 

reason for the variation, might need to 

be regarded as reflecting different, 

unique wage rates. 

The ARB’s decision in Mistick limited 

the Administrator’s methodology for 

determining a prevailing rate, thus 

contributing to the increased use of 

weighted average rates. As noted above, 

however, both the Department and OLC 

have agreed that averages should 

generally only be used as a last resort. 

As the OLC opinion noted, the use of an 

average is difficult to justify 

‘‘particularly in cases where it coincides 

with none of the actual wage rates being 

paid.’’ 5 Op. O.L.C. at 177 (emphasis in 

original).36 In discussing those cases, 

OLC quoted from the 1963 House Report 

summarizing extensive congressional 

oversight hearings of the Act. The report 

had concluded that ‘‘[u]se of an average 

rate would be artificial in that it would 

not reflect the actual wages being paid 

in a local community,’’ and ‘‘such a 

method would be disruptive of local 

wage standards if it were utilized with 

any great frequency.’’ Id.37 To the extent 

that an inflexible, ‘‘to the penny’’ 

approach to determining if wage data 

reflects the ‘‘same wage’’ promotes the 

use of average rates even when wage 

rate variations are exceedingly slight 

and are based on practices reflecting 

that the rates, while not identical, are 

functionally equivalent, such an 

approach would be inconsistent with 

these authorities and the statutory 

purpose they reflect. 

For these reasons, and particularly 

because a mechanical, ‘‘to the penny’’ 

approach ultimately undermines rather 

than promotes the determination of 

actual prevailing wage rates, the 

Department believes that it is consistent 

with the language and purpose of the 

statute to treat slight variations in wages 

as the same rate in appropriate 

circumstances. 

As reflected in Mistick, the existing 

regulation does not clearly authorize the 

use of functionally equivalent wages to 

determine the local prevailing wage. See 

2006 WL 861357, at *5–7. Accordingly, 

the Department proposes to amend § 1.3 

to include a new paragraph at § 1.3(e) 

that would permit the Administrator to 

count wage rates together—for the 

purpose of determining the prevailing 

wage—if the rates are functionally 

equivalent and the variation can be 

explained by a CBA or the written 

policy of a contractor. 

Such flexibility would not be 

unlimited. Some variations within the 

same CBA clearly amount to different 

rates. For example, when a CBA 

authorizes the use of ‘‘market recovery 

rates’’ that are lower than the standard 

rate in order to win a bid, under certain 

circumstances those rates may not be 

appropriate to combine together with 

the CBA’s standard rate as ‘‘functionally 

equivalent’’ because frequent use of 

such a rate could suggest (though does 


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38See, e.g., National Housing Act, 12 U.S.C. 

1715c(a) (locality); Housing and Community 

Development Act of 1974, 42 U.S.C. 1440(g), 

5310(a) (locality); Federal Water Pollution Control 

Act, 33 U.S.C. 1372 (immediate locality); FederalAid Highway Acts, 23 U.S.C. 113(a) (immediate 

locality). 

39The Wage Appeals Board (WAB) was the 

Department’s administrative appellate entity from 

1964 until 1996, when it was eliminated and the 

Administrative Review Board was created and 

provided jurisdiction over appeals from decisions 

of the Administrator and the Department’s 

Administrative Law Judges (ALJs) under a number 

of statutes, including the Davis-Bacon and Related 

Acts. 61 FR 19978 (May 3, 1996). WAB decisions 

from 1964 to 1996 are available on the Department’s 

website at https://www.dol.gov/agencies/oalj/ 

public/dba_sca/references/caselists/wablist. 

40See note 8, supra. 

41See generally Am. Assoc. of State Highway and 

Transp. Offs., Transportation Governance and 

Financing: A 50-State Review of State Legislatures 

and Departments of Transportation (2016), available 

at: https://www.financingtransportation.org/pdf/50_

state_review_nov16.pdf. 

not necessarily compel) a conclusion 

that the CBA’s regular rate may not be 

prevailing in the area. 

The Department welcomes comments 

on all aspects of this proposal regarding 

proposed changes to the definition of 

‘‘prevailing wage’’ in § 1.2 and to the 

regulation governing the obtaining and 

compiling of wage rate information in 

§ 1.3. 

(B) Area 

The core definition of ‘‘area’’ in § 1.2 

largely reproduces the specification in 

the Davis-Bacon Act statute, prior to its 

2002 re-codification, that the prevailing 

wage should be based on projects of a 

similar character in the ‘‘city, town, 

village, or other civil subdivision of the 

State in which the work is to be 

performed.’’ See 40 U.S.C. 276a(a) 

(2002). 

The rule’s geography-based definition 

of area applies to federally assisted 

projects covered by the Davis-Bacon 

Related Acts as well as projects covered 

by the DBA itself. Some of the Related 

Acts have used different terminology to 

identify the appropriate ‘‘area’’ for a 

wage determination, including the terms 

‘‘locality’’ and ‘‘immediate locality.’’ 38

However, the Department has long 

concluded that these terms are best 

interpreted and applied consistent with 

the methodology for determining the 

area under the original DBA. See 

Virginia Segment C–7, METRO, WAB 

71–4, 1971 WL 17609, at *3–4 (Dec. 7, 

1971).39

The Department proposes to revise 

the definition of area to address projects 

that span multiple counties and to 

address highway projects specifically. 

Under WHD’s current methodology, if a 

project spans more than one county, the 

contracting officer is instructed to attach 

wage determinations for each county to 

the project and contractors may be 

required to pay differing wage rates to 

the same employees when their work 

crosses county lines. This policy was 

reinforced in 1971 when the Wage 

Appeals Board (WAB) found that, under 

the terms of the then-applicable 

regulations, there was no basis to 

provide a single prevailing wage rate for 

a project occurring in Virginia, the 

District of Columbia, and Maryland. See 

Virginia Segment C–7, METRO, 1971 

WL 17609. 

Critics of this policy have pointed out 

that workers are very often hired and 

paid a single wage rate for a project, 

and—unless there are different city or 

county minimum wage laws—workers’ 

pay rates often do not change as they 

move between tasks in different 

counties. The 2011 report by the GAO, 

for example, quoted a statement from a 

contractor association representative 

that requiring different wage rates for 

the same workers on the same multicounty project is ‘‘illogical.’’ See 2011 

GAO Report at 24.40

While requiring different prevailing 

wage rates for work by the same worker 

on the same project may be consistent 

with the current regulations, the DBA 

and Related Act statutes themselves do 

not address multi-jurisdictional 

projects. Issuing and applying a single 

project wage determination for such 

projects is not inconsistent with the text 

of the DBA. Nor is it inconsistent with 

the purpose of the DBA, which is to 

protect against the depression of local 

wage rates caused by competition from 

low-bid contractors from outside of the 

locality. 

Accordingly, the Department 

proposes adding language in the 

definition of ‘‘area’’ in § 1.2 that would 

expressly authorize WHD to issue 

project wage determinations with a 

single rate for each classification, using 

data from all of the relevant counties in 

which a project will occur. The 

Department solicits comments on 

whether this procedure should be 

mandatory for multi-jurisdictional 

projects or available at the request of the 

contracting agency or an interested 

party, if WHD determines that such a 

project wage determination would be 

appropriate. 

The Department’s other proposed 

change to the definition of ‘‘area’’ in 

§ 1.2 is to allow the use of State highway 

districts or similar transportation 

subdivisions as the relevant wage 

determination area for highway projects. 

Although there is significant variation 

between states, most states maintain 

civil subdivisions responsible for 

certain aspects of transportation 

planning, financing, and maintenance.41

These districts tend to be organized 

within State departments of 

transportation or otherwise through 

State and County governments. 

Using State highway districts as a 

geographic unit for wage determinations 

would be consistent with the DavisBacon Act’s specification that wage 

determinations should be tied to a ‘‘civil 

subdivision of a State.’’ State highway 

districts were considered to be 

‘‘subdivisions of a State’’ at the time the 

term was used in the original DavisBacon Act. See Wight v. Police Jury of 

Par. of Avoyelles, La., 264 F. 705, 709 

(5th Cir. 1919) (describing the creation 

of highway districts as ‘‘governmental 

subdivisions of the [S]tate’’). 

In identifying the appropriate 

geographic area of a wage 

determination, the Federal-Aid Highway 

Act of 1956 (FAHA), one of the Related 

Acts, uses the term ‘‘immediate 

locality’’ instead of ‘‘civil subdivision.’’ 

23 U.S.C. 113. However, the FAHA 

requires the application of prevailing 

wage rates in the immediate locality to 

be ‘‘in accordance with’’ the DBA, id., 

and, as noted above, WHD has long 

applied these alternative definitions of 

area in the Related Acts in a manner 

consistent with the ‘‘civil subdivision’’ 

language in the original Act. 

The Department also notes that 

Congress, in enacting the FAHA, 

envisioned that the Federal aid would 

be provided in a manner that sought to 

complement and cooperate with State 

departments of transportation. See 

Frank Bros. v. Wisconsin Dep’t of 

Transp., 409 F.3d 880, 887–89 (7th Cir. 

2005). As State highway or 

transportation districts often plan, 

develop, and oversee federally financed 

highway projects, the provision of a 

single wage determination for each 

district would simplify the procedure 

for incorporating Federal financing into 

these projects. 

As such, the Department proposes to 

authorize WHD to adopt State highway 

districts as the geographic area for 

determining prevailing wages on 

highway projects, where appropriate. 

(C) Type of Construction (or 

Construction Type) 

The Department proposes to define 

‘‘type of construction’’ or ‘‘construction 

type’’ to mean the general category of 

construction as established by the 

Administrator for the publication of 

general wage determinations. The 

proposed language also provides 

examples of types of construction, 


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42See Final Rule, Procedures for 

Predetermination of Wage Rates, 47 FR 23644 (May 

28, 1982). 

43 Id. 

44See Donovan, 712 F.2d at 620. 45 Id. at 621–22. 

including building, residential, heavy, 

and highway, consistent with the four 

construction types the Department 

currently uses in general wage 

determinations, but does not exclude 

the possibility of other types. The terms 

‘‘type of construction’’ or ‘‘construction 

type’’ are already used elsewhere in part 

1 to refer to these general categories of 

construction, as well as in wage 

determinations themselves. As used in 

this part, the terms ‘‘type of 

construction’’ and ‘‘construction type’’ 

are synonymous and interchangeable. 

The Department believes that including 

this definition would provide additional 

clarity for these references, particularly 

for members of the regulated 

community who might be less familiar 

with the term. 

(D) Other Definitions 

The Department proposes additional 

conforming edits to 29 CFR 1.2 in light 

of proposed changes to 29 CFR 5.2. As 

part of these conforming edits, the 

Department proposes to revise the 

definition of ‘‘agency’’ (and add a subdefinition of ‘‘Federal agency’’) to 

mirror the definition proposed and 

discussed below in § 5.2. The 

Department also proposes to add to § 1.2 

new defined terms also proposed in 

parts 3 and 5, including ‘‘employed’’, 

‘‘type of construction (or construction 

type),’’ and ‘‘United States or the 

District of Columbia.’’ For further 

discussion on these proposed terms, see 

the corresponding discussion in § 3.2 

and 5.2 below. 

(E) Paragraph Designations 

The Department is also proposing to 

amend §§ 1.2, 3.2, and 5.2 to remove 

paragraph designations of defined terms 

and instead to list defined terms in 

alphabetical order. The Department 

proposes to make conforming edits 

throughout parts 1, 3, and 5 in any 

provisions that currently reference 

lettered paragraph definitions. 

iii. Section 1.3 Obtaining and 

Compiling Wage Rate Information 

(A) 29 CFR 1.3(b) 

The Department proposes to switch 

the order of § 1.3(b)(4) and (5) for 

clarity. This nonsubstantive change 

would simply group together the 

subparagraphs in § 1.3(b) that apply to 

wage determinations generally, and 

follow those subparagraphs with one 

that applies only to Federal-aid highway 

projects under 23 U.S.C. 113. 

(B) 29 CFR 1.3(d) 

As part of its effort to modernize the 

regulations governing the determination 

of Davis-Bacon prevailing wage rates, 

the Department is considering whether 

to revise § 1.3(d), regarding when survey 

data from Federal or federally assisted 

projects subject to Davis-Bacon 

prevailing wage requirements 

(hereinafter ‘‘Federal project data’’) may 

be used in determining prevailing wages 

for building and residential construction 

wage determinations. The Department is 

not proposing any specific revisions to 

§ 1.3(d) in this NPRM, but rather is 

seeking comment on whether this 

regulatory provision—particularly its 

limitation on the use of Federal project 

data in determining wage rates for 

building and residential construction 

projects—should be revised. 

For approximately 50 years 

(beginning shortly after the DBA was 

enacted in 1931 and continuing until 

the 1981–1982 rulemaking), the 

Department used Federal project data in 

determining prevailing wage rates for all 

categories of construction, including 

building and residential construction. 

The final rule promulgated in May 1982 

codified this practice with respect to 

heavy and highway construction, 

providing in new § 1.3(d) that ‘‘[d]ata 

from Federal or federally assisted 

projects will be used in compiling wage 

rate data for heavy and highway wage 

determinations.’’ 42 The Department 

explained that ‘‘it would not be 

practical to determine prevailing wages 

for ‘heavy’ and ‘highway’ construction 

projects if Davis-Bacon covered projects 

are excluded in making wage surveys 

because such a large portion of those 

types of construction receive Federal 

financing.’’ 43

With respect to building and 

residential construction, however, the 

1982 final rule concluded that such 

construction often occurred without 

Federal financial assistance subject to 

Davis-Bacon prevailing wage 

requirements, and that to invariably 

include Federal project data in 

calculating prevailing wage rates 

applicable to building and residential 

construction projects therefore would 

‘‘skew[ ] the results upward,’’ contrary 

to congressional intent.44 The final rule 

therefore provided in § 1.3(d) that ‘‘in 

compiling wage rate data for building 

and residential wage determinations, 

the Administrator will not use data from 

Federal or federally assisted projects 

subject to Davis-Bacon prevailing wage 

requirements unless it is determined 

that there is insufficient wage data to 

determine the prevailing wages in the 

absence of such data.’’ 29 CFR 1.3(d). In 

subsequent litigation, the D.C. Circuit 

upheld § 1.3(d)’s limitation on the use of 

Federal project data as consistent with 

the DBA’s purpose and legislative 

history—if not necessarily its plain 

text—and therefore a valid exercise of 

the Administrator’s broad discretion to 

administer the Act.45

As a result of § 1.3(d)’s limitation on 

the use of Federal project data in 

calculating prevailing wage rates 

applicable to building and residential 

construction, WHD first attempts to 

calculate a prevailing wage based on 

non-Federal project survey data at the 

county level—i.e., survey data that 

includes data from private projects or 

projects funded by State and local 

governments without assistance under 

the DBRA, but excludes data from 

Federal or federally assisted projects 

subject to Davis-Bacon prevailing wage 

requirements. See 29 CFR 1.3(d), 1.7(a); 

Manual of Operations at 38; Coal. for 

Chesapeake Hous. Dev., ARB No. 12– 

010, 2013 WL 5872049, at *4 (Sept. 25, 

2013) (Chesapeake Housing). If there is 

insufficient non-Federal project survey 

data for a particular classification in that 

county, then WHD considers survey 

data from Federal projects in the county 

if such data is available. 

Under the current regulations, WHD 

expands the geographic scope of data 

that it considers when it is making a 

county wage determination when data is 

insufficient at the county level. This 

procedure is described below in the 

discussion of the ‘‘scope of 

consideration’’ regulation at § 1.7. For 

wage determinations for federally 

funded building and residential 

construction projects, WHD currently 

integrates Federal project data into this 

procedure at each level of geographic 

aggregation in the same manner it is 

integrated at the county level: If the 

combined Federal and non-Federal 

survey data received from a particular 

county is insufficient to establish a 

prevailing wage rate for a classification 

in a county, then WHD attempts to 

calculate a prevailing wage rate for that 

county based on non-Federal wage data 

from a group of surrounding counties. 

See 29 CFR 1.7(a), (b). If non-Federal 

project survey data from the 

surrounding-county group is 

insufficient, then WHD includes Federal 

project data from all the counties in that 

county group. If both non-Federal 

project and Federal project data for a 

surrounding-county group is still 

insufficient to determine a prevailing 

wage rate, then, for classifications that 

have been designated as ‘‘key’’ 


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46See note 16, supra. 

47See note 8, supra. 

48A list of such states, and the thresholds for 

coverage, can be found here: Dollar Threshold 

Amount for Contract Coverage, U.S. Dep’t of Lab., 

Wage and Hour Div., https://www.dol.gov/agencies/ 

whd/state/prevailing-wages (last updated Jan. 

2021). 

49These states include Iowa, North Dakota, and 

South Dakota. 

classifications, WHD may expand to a 

‘‘super group’’ of counties or even to the 

statewide level. See Chesapeake 

Housing, 2013 WL 5872049, at *6; 

PWRB, Davis-Bacon Surveys, at 6.46 At 

each stage of data expansion for 

building and residential wage 

determinations, WHD first attempts to 

determine prevailing wages based on 

non-Federal project data; however, if 

there is insufficient non-Federal data, 

WHD will consider Federal project data. 

As reflected in the plain language of 

§ 1.3(d) as well as WHD’s 

implementation of that regulatory 

provision, the current formulation of 

§ 1.3(d) does not prohibit all uses of 

Federal project data in establishing 

prevailing wage rates for building and 

residential construction projects subject 

to Davis-Bacon requirements; rather it 

limits the use of such data to 

circumstances where ‘‘there is 

insufficient wage data to determine the 

prevailing wages in the absence of such 

data.’’ 29 CFR 1.3(d). WHD often uses 

Federal project data in calculating 

prevailing wage rates applicable to 

residential construction due to 

insufficient non-Federal project survey 

data submissions. By contrast, because 

WHD’s surveys of building construction 

typically have a higher participation 

rate than residential surveys, WHD uses 

Federal project data less frequently in 

calculating prevailing wage rates 

applicable to building construction 

projects covered by the DBRA. For 

example, the 2011 GAO Report analyzed 

4 DBA surveys and found that over twothirds of the residential rates for 16 key 

job classifications (such as carpenter 

and common laborer) included Federal 

project data because there was 

insufficient non-Federal project data, 

while only about one-quarter of the 

building wage rates for key 

classifications included Federal project 

data. 2011 GAO Report, at 26.47

Notwithstanding the use of Federal 

project data in calculating prevailing 

wage rates for building and residential 

construction, the Department recognizes 

that some interested parties may believe 

that § 1.3(d) imposes an absolute barrier 

to the use of Federal project data in 

determining prevailing wage rates. As a 

result, survey participants may not 

submit Federal project data in 

connection with WHD’s surveys of 

building and residential construction— 

thereby reducing the amount of data 

that WHD receives in response to its 

building and residential surveys. The 

Department strongly encourages robust 

participation in Davis-Bacon prevailing 

wage surveys, including building and 

residential surveys, and it therefore 

urges interested parties to submit 

Federal project data in connection with 

building and residential surveys with 

the understanding that such data will be 

used in calculating prevailing wage 

rates if insufficient non-Federal project 

data is received. In the absence of such 

Federal project data, for example, a 

prevailing wage rate may be calculated 

at the surrounding-county group or even 

statewide level when it would have 

been calculated based on a smaller 

geographic area if more Federal project 

data had been submitted. 

Although increased submission of 

such Federal project data thus could be 

expected to contribute to more robust 

wage determinations even without any 

change to § 1.3(d), the Department 

recognizes that revisions to § 1.3(d) may 

nonetheless be warranted. Specifically, 

the Department is interested in 

comments regarding whether to revise 

§ 1.3(d) in a way that would permit 

WHD to use Federal project data more 

frequently when it calculates building 

and residential prevailing wages. For 

example, particularly given the 

challenges that WHD has faced in 

achieving high levels of participation in 

residential wage surveys—and given the 

number of residential projects that are 

subject to Davis-Bacon labor standards 

under Related Acts administered by the 

U.S. Department of Housing and Urban 

Development—it may be appropriate to 

expand the amount of Federal project 

data that is available to use in setting 

prevailing wage rates for residential 

construction. 

There may also be other specific 

circumstances that particularly warrant 

greater use of Federal project data. More 

generally, if the current limitation on 

the use of Federal project data were 

removed from § 1.3(d), WHD could in 

all circumstances establish Davis-Bacon 

prevailing wage rates for building and 

residential construction based on all 

usable wage data in the relevant county 

or other geographic area, without regard 

to whether particular wage data was 

‘‘Federal’’ and whether there was 

‘‘insufficient’’ non-Federal project data. 

Alternatively, § 1.3(d) could be revised 

in order to provide a definition of 

‘‘insufficient wage data,’’ thereby 

providing increased clarity regarding 

when Federal project data may and may 

not be used in establishing prevailing 

wage rates for building or residential 

construction. The Department 

specifically invites comments on these 

and any other issues regarding the use 

of Federal project data in developing 

building and residential wage 

determinations. 

(C) 29 CFR 1.3(f)—Frequently 

Conformed Rates 

The Department is also proposing 

changes relating to the publication of 

rates for labor classifications for which 

conformance requests are regularly 

submitted when such classifications are 

missing from wage determinations. The 

Department’s proposed changes to this 

subsection are discussed below in part 

III.B.1.xii (‘‘Frequently conformed 

rates’’), together with proposed changes 

to § 5.5(a)(1). 

(D) 29 CFR 1.3(g)–(j)—Adoption of 

State/Local Prevailing Wage 

Determinations 

The Department proposes to add new 

paragraphs (g), (h), (i), and (j) to § 1.3 to 

permit the Administrator, under 

specified circumstances, to determine 

Davis-Bacon wage rates by adopting 

prevailing wage rates set by State and 

local governments. 

About half of the States, as well as 

many localities, have their own 

prevailing wage laws (sometimes called 

‘‘little’’ Davis-Bacon laws).48

Additionally, a few states have 

processes for determining prevailing 

wages in public construction even in the 

absence of such State laws.49

Accordingly, the Administrator has long 

taken prevailing wage rates set by States 

and localities into account when making 

wage determinations. Under the current 

regulations, one type of information that 

the Administrator may ‘‘consider[ ]’’ in 

determining wage rates is ‘‘[w]age rates 

determined for public construction by 

State and local officials pursuant to 

State and local prevailing wage 

legislation.’’ 29 CFR 1.3(b)(3). 

Additionally, for wage determinations 

on federally-funded highway 

construction projects, the Administrator 

is required by statute and regulation to 

‘‘consult[ ]’’ with ‘‘the highway 

department of the State’’ in which the 

work is to be performed, and to ‘‘give 

due regard to the information thus 

obtained.’’ 23 U.S.C. 113(b); 29 CFR 

1.3(b)(4). 

In reliance on these provisions, WHD 

has sometimes adopted and published 

certain states’ highway wage 

determinations in lieu of conducting 

wage surveys in certain areas. 

According to a 2019 report by the 

Department’s Office of the Inspector 

General (OIG), WHD used highway wage 


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50See note 11, supra. 

51Some states, such as Minnesota, conduct 

surveys annually. See Prevailing Wage: Annual 

Statewide Survey, Minn. Dep’t of Labor & Indus., 

https://www.dli.mn.gov/business/employmentpractices/prevailing-wage-annual-statewide-survey 

(last visited Nov. 17, 2021). Others use a different 

frequency; for example, Nevada conducts a survey 

every 2 years. See Nevada’s 2021–2023 Prevailing 

Wage Survey Released, Nev. Dep’t of Bus. & Indus., 

https://business.nv.gov/News_Media/Press_

Releases/2021/Labor_Commissioner/ 

Nevada%E2%80%99s_2021-2023_Prevailing_

Wage_Survey_Released/ (last visited Nov. 17, 2021). 

52For example, Washington uses a definition 

similar to the Department’s current majority rule. 

See Wash. Rev. Code § 39.12.010(1) (2021). 

Wyoming, in contrast, uses a method that mirrors 

the three-step process in this proposed rule. Wyo. 

Stat. Ann. §§ 27–4–401–413 (2021). Other states use 

CBA rates as a starting point. N.M. Stat. Ann. §§ 13– 

4–10–17 (2021); N.M. Code R. § 11.1.2.12 (2021); 

N.Y. Lab. Law §§ 220–224 (McKinney 2021). 

determinations from 15 states between 

fiscal years 2013 and 2017. See 2019 

OIG Report at 10.50

The OIG report expressed concern 

about the high number of out-of-date 

Davis-Bacon wage rates, particularly 

non-union rates, noting, for example, 

that some published wage rates were as 

many as 40 years old. Id. at 5. The OIG 

report further noted that at the time, 26 

states and the District of Columbia had 

their own prevailing wage laws, and 

recommended that WHD ‘‘should 

determine whether it would be 

statutorily permissible and 

programmatically appropriate to adopt 

[S]tate or local wage rates other than 

those for highway construction.’’ Id. at 

10–11. WHD indicated to OIG that in 

the absence of a regulatory revision, it 

viewed adoption of State rates for nonhighway construction as in tension with 

the definition of prevailing wage in 

§ 1.2(a) and the ARB’s Mistick decision. 

Id. at 10. 

The Department shares OIG’s concern 

regarding outdated wage rates. Outdated 

and/or inaccurate wage determinations 

are inconsistent with the intent of the 

Davis-Bacon labor standards, which aim 

to ensure that laborers and mechanics 

on covered projects are paid locally 

prevailing wages and fringe benefits. 

Wage rates that are significantly out-ofdate do not reflect this intent and could 

even have the effect of depressing wages 

if covered contractors pay no more than 

an artificially-low prevailing wage rate 

that has not been adjusted over time to 

continue to reflect the wages paid to 

workers in a geographic area. 

Accordingly, the Department agrees 

with OIG that, where appropriate, 

adoption of more current wage 

determinations made by states and 

localities would be consistent with the 

DBA’s purpose. States often conduct 

wage surveys far more frequently than 

WHD.51 Furthermore, if a State or 

locality is already engaged in efforts to 

determine prevailing wages—and if the 

State’s methods are reliable, rigorous, 

and transparent—similar activities 

conducted by WHD on a less regular 

basis can be duplicative and an 

inefficient use of survey respondents’ 

efforts and WHD’s scarce resources. 

Relatedly, states and localities that 

regularly update their own wage 

determinations may have ongoing 

relationships with stakeholders in the 

relevant geographic areas that facilitate 

that process. In contrast, WHD may lack 

similarly strong relationships with those 

stakeholders given the relative 

infrequency with which it surveys any 

given area. Thus, many states and 

localities may be in a position to ensure 

greater participation in wage surveys, 

which can improve wage survey 

accuracy. 

The Department believes that a 

regulatory revision would best ensure 

that WHD can incorporate State and 

local wage determinations where doing 

so would further the purposes of the 

Davis-Bacon labor standards. As noted 

above, the current regulations permit 

WHD to ‘‘consider’’ State or local 

prevailing wage rates among a variety of 

sources of information used to make 

wage determinations, and require WHD 

to give ‘‘due regard’’ to information 

obtained from State highway 

departments for highway wage 

determinations. See 29 CFR 1.3(b)(3)– 

(4). However, they also provide that any 

information WHD considers when 

making wage determinations must ‘‘be 

evaluated in the light of [the prevailing 

wage definition set forth in] § 1.2(a).’’ 29 

CFR 1.3(c). While some States and 

localities’ definitions of prevailing wage 

mirror the Department’s regulatory 

definition, many others’ do not.52

Because the current regulations at 

§§ 1.2(a) and 1.3(c), as well as the ARB’s 

decision in Mistick, suggest that any 

information (such as State or local wage 

rates) that WHD obtains and 

‘‘consider[s]’’ under § 1.3(b) must be 

filtered through the definition of 

‘‘prevailing wage’’ in § 1.2, the 

Department is proposing a regulatory 

change to clarify that WHD may adopt 

State or local prevailing wage 

determinations under certain 

circumstances even where the State or 

locality’s definition of prevailing wage 

differs from the Department’s. 

Additionally, the Department’s 

regulations apply numerous 

requirements and constraints to WHD’s 

own wage determinations, such as those 

concerning geographic scope, see § 1.7, 

and the type of project data that may be 

used, see § 1.3(d). Like the definition of 

prevailing wage, analogous 

requirements under State and local 

prevailing wage laws vary. Although, as 

noted above, the Department’s 

regulations permit WHD to ‘‘consider’’ 

State and local determinations and to 

give ‘‘due regard’’ to State rates for 

highway construction, the current 

regulations do not specifically address 

whether WHD may adopt State or local 

rates derived using methods and 

requirements that differ from those used 

by WHD. 

Accordingly, and in light of the 

advantages of adopting State and local 

rates discussed above, the Department is 

proposing to add a new paragraph, 

§ 1.3(g), which would explicitly permit 

WHD to adopt prevailing wage rates set 

by State or local officials, even where 

the methods used to derive such rates, 

including the definition of the 

prevailing wage, may differ in some 

respects from the methods the 

Administrator uses under the DBA and 

the regulations in 29 CFR part 1. The 

proposal would permit WHD to adopt 

such wage rates provided that the 

Administrator, after reviewing the rate 

and the processes used to derive the 

rate, concludes that they meet certain 

listed criteria. The criteria, which are 

explained further below, are intended to 

allow WHD to adopt State and local 

prevailing wage rates where appropriate 

while also ensuring that adoption of 

such rates is consistent with the 

statutory requirements of the DavisBacon Act and does not create arbitrary 

distinctions between jurisdictions 

where WHD makes wage determinations 

by using its own surveys and 

jurisdictions where WHD makes wage 

determinations by adopting adopt State 

or local rates. 

Importantly, the proposed rule 

requires the Administrator to make an 

affirmative determination that the 

enumerated criteria have been met in 

order to adopt a State or local wage rate, 

and to do so only after careful review of 

both the rate and the process used to 

derive the rate. This makes clear that if 

the proposed rule is finalized, the 

Department may not simply accept State 

or local data with little or no review. 

Such actions would be inconsistent 

with the Secretary’s statutory 

responsibility to ‘‘determine[ ]’’ the 

wages that are prevailing. 40 U.S.C. 

3142(b). Adoption of State or local rates 

after appropriate review, however, is 

consistent with the authority Congress 

granted to the Department in the DavisBacon Act. The DBA ‘‘does not 

prescribe a method for determining 

prevailing wages.’’ Chesapeake 

Housing, 2013 WL 5872049, at *4. 


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53For example, a few states determine prevailing 

wage rates through stakeholder negotiations that 

typically involve labor and employer groups. The 

proposed rule does not foreclose acceptance of rates 

set using such a process providing that the process 

is generally open to full participation by all 

interested parties and that the other required 

criteria are met. 

Rather, the statute ‘‘delegates to the 

Secretary, in the broadest terms 

imaginable, the authority to determine 

which wages are prevailing.’’ Donovan, 

712 F.2d at 616. The D.C. Circuit has 

explained that the DBA’s legislative 

history reflects that Congress 

‘‘envisioned that the Secretary could 

establish the method to be used’’ to 

determine DBA prevailing wage rates. 

Id. (citing 74 Cong. Rec. 6,516 (1931) 

(remarks of Rep. Kopp) (‘‘A method for 

determining the prevailing wage rate 

might have been incorporated in the 

bill, but the Secretary of Labor can 

establish the method and make it known 

to the bidders.’’)). 

Reliance on prevailing wage rates 

calculated by State or local authorities 

for similar purposes is a permissible 

exercise of this broad statutory 

discretion. In areas where states or 

localities are already gathering reliable 

information about prevailing wages in 

construction, it may be inefficient for 

the Department to use its limited 

resources to perform the same tasks. As 

a result, the Department is proposing to 

use State and local wage determinations 

under specified circumstances where, 

based on a review and analysis of the 

processes used in those wage 

determinations, the Administrator 

determines that such use would be 

appropriate and consistent with the 

DBA. Such resource-driven decisions by 

Federal agencies are permissible. See, 

e.g., Hisp. Affs. Project v. Acosta, 901 

F.3d 378, 392 (D.C. Cir. 2018) 

(upholding Department’s decision not to 

collect its own data but instead to rely 

on a ‘‘necessarily . . . imprecise’’ 

estimate given that data collection 

under the circumstances would have 

been ‘‘very difficult and resourceintensive’’); Dist. Hosp. Partners, L.P. v. 

Burwell, 786 F.3d 46, 61–62 (D.C. Cir. 

2015) (agency’s use of ‘‘imperfect[ ]’’ 

data set was permissible under the 

Administrative Procedure Act). 

The Department is proposing to 

permit the adoption of State and local 

rates for all types of construction. The 

FHWA’s independent statutory 

obligation for the Department to 

consider and give ‘‘due regard’’ to 

information obtained from State 

highway agencies for highway wage 

determinations does not prohibit WHD 

from adopting State or local 

determinations, either for highway 

construction or for other types of 

construction, where appropriate. Rather, 

this language imposes a minimum 

requirement for the Secretary to consult 

with states and consider their wage 

determinations for highway 

construction. See Virginia, ex rel., 

Comm’r, Virginia Dep’t of Highways and 

Transp. v. Marshall, 599 F.2d 588, 594 

(4th Cir. 1979) (‘‘Section 113(b) requires 

that the Secretary ‘consult’ and give 

‘due regard’ to the information thus 

obtained.’’). In sum, the FHWA’s 

requirement sets a floor for reliance on 

State data for highway construction, not 

a ceiling, and does not foreclose reliance 

on State or local data for other types of 

construction. 

The criteria the Department proposes 

for the adoption of State or local rates, 

which are included in proposed new 

paragraph § 1.3(h), are as follows: 

First, the State or local government 

must set prevailing wage rates, and 

collect relevant data, using a survey or 

other process that generally is open to 

full participation by all interested 

parties. This requirement ensures that 

WHD will not adopt a prevailing wage 

rate where the process to set the rate 

artificially favors certain entities, such 

as union or non-union contractors. 

Rather, the State or local process must 

reflect a good-faith effort to derive a 

wage that prevails for similar workers 

on similar projects within the relevant 

geographic area within the meaning of 

the Davis-Bacon Act statutory 

provisions. The use of the language 

‘‘survey or other process’’ in the 

proposed regulatory text is intended to 

permit the Administrator to incorporate 

wage determinations from States or 

localities that do not necessarily engage 

in surveys but instead use a different 

process for gathering information and 

setting prevailing wage rates, provided 

that this process meets the required 

criteria.53

Second, the State or local wage rate 

must reflect both a basic hourly rate of 

pay as well as any locally prevailing 

bona fide fringe benefits, each of which 

can be calculated separately. Thus, 

under the proposed rule, WHD must be 

able to confirm during its review 

process that both figures are prevailing 

for the relevant classification(s), and 

must be able to list each figure 

separately on its wage determinations. 

This reflects the statutory requirement 

that a prevailing wage rate under the 

Davis-Bacon Act must include fringe 

benefits, 40 U.S.C. 3141(2)(B); 29 CFR 

5.20, and that ‘‘the Secretary is obligated 

to make a separate finding of the rate of 

contribution or cost of fringe benefits.’’ 

29 CFR 5.25(a). This requirement also 

would ensure that WHD could 

determine the basic or regular rate of 

pay in order to determine compliance 

with the Contract Work Hours and 

Safety Standards Act (CWHSSA) and 

the Fair Labor Standards Act (FLSA). 

Third, the State or local government 

must classify laborers and mechanics in 

a manner that is recognized within the 

field of construction. The Department 

recognizes that differences in industry 

practices mean that the precise types of 

work done and tools used by workers in 

particular classifications may not be 

uniform across states and localities. For 

example, in some areas, a significant 

portion of work involving the 

installation of heating, ventilation, and 

air-conditioning (HVAC) duct work may 

be done by an HVAC Technician, 

whereas in other areas such work may 

be more typically performed by a Sheet 

Metal Worker. Indeed, unlike in the case 

of the Service Contract Act (SCA), WHD 

does not maintain a directory of 

occupations for the Davis-Bacon Act. 

However, under this proposed rule, in 

order for WHD to adopt a State or 

locality’s wage rate, the State or 

locality’s classification system must be 

in a manner recognized within the field 

of construction. This standard is 

intended to ensure that the 

classification system does not result in 

lower wages than are appropriate by, for 

example, assigning duties associated 

with skilled classifications to a 

classification for a general laborer. 

Finally, the State or local 

government’s criteria for setting 

prevailing wage rates must be 

substantially similar to those the 

Administrator uses in making wage 

determinations under 29 CFR part 1. 

The proposed regulation provides a 

non-exclusive list of factors to guide this 

determination, including, but not 

limited to, the State or local 

government’s definition of prevailing 

wage; the types of fringe benefits it 

accepts; the information it solicits from 

interested parties; its classification of 

construction projects, laborers, and 

mechanics; and its method for 

determining the appropriate geographic 

area(s). Thus, the more similar a State or 

local government’s methods are to those 

used by WHD, the greater likelihood 

that their corresponding wage rate(s) 

will be accepted. While the proposed 

regulation lists the above factors as 

guidelines, it ultimately directs that the 

Administrator’s determination in this 

regard will be based on the totality of 

the circumstances. The reservation of 

such discretion in the Administrator 

intends to preserve the Administrator’s 

ability to make an overall determination 

regarding whether adoption of a State or 

local wage rate is consistent with both 


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the language and purpose of the DBA, 

and thereby is consistent with the 

statutory directive for the Secretary (in 

this case, via delegation to the 

Administrator), to determine the 

prevailing wage. See 40 U.S.C. 3142(b). 

Proposed § 1.3(g) permits the 

Administrator to adopt State or local 

wage rates with or without 

modification. This is intended to 

encompass situations where the 

Administrator reviews a State or local 

wage determination and determines that 

although the State or local wage 

determination might not satisfy the 

above criteria as initially submitted, it 

would satisfy those criteria with certain 

modifications. For example, the 

Administrator may obtain from the State 

or local government the State or 

locality’s wage determinations and the 

wage data underlying those 

determinations, and, provided the data 

was collected in accordance with the 

criteria set forth earlier (such as that the 

survey was fully open to all 

participants) may determine, after 

review and analysis, that it would be 

appropriate to use the underlying data 

to adjust or modify certain 

classifications or construction types, or 

to adjust the wage rate for certain 

classifications. Consistent with the 

Secretary’s authority to make wage 

determinations, the regulation permits 

the Administrator to modify a State or 

local wage rate as appropriate while still 

generally relying on it as the primary 

source for a wage determination. For 

instance, before using State or local 

government wage data to calculate 

prevailing wage rates under the DBA, 

the Administrator could regroup 

counties, apply the definition of 

‘‘prevailing wage’’ set forth in § 1.2, 

disregard data for workers who do not 

qualify as laborers or mechanics under 

the DBA, and/or segregate data based on 

the type of construction involved. It is 

anticipated that the Administrator 

would cooperate with the State or 

locality to make the appropriate 

modifications to any wage rates. 

The Department also proposes to add 

a new paragraph § 1.3(i), which would 

explain that in order for WHD to adopt 

a State or local government prevailing 

wage rate, the Administrator must 

obtain the wage rates and any relevant 

supporting documentation and data 

from the State or local entity, and 

provides instructions for submission. 

Finally, the Department proposes to 

add a new paragraph § 1.3(j), which 

would explain that nothing in the 

additional proposed sections described 

above precludes the Administrator from 

considering State or local prevailing 

wage rates in a more holistic fashion, 

consistent with § 1.3(b)(3), or from 

giving due regard to information 

obtained from State highway 

departments, consistent with § 1.3(b)(4), 

as part of the Administrator’s process of 

making prevailing wage determinations 

under 29 CFR part 1. For example, 

under this proposed rule, as under the 

current regulations, if a State or locality 

were to provide the Department with 

the underlying data that it uses to 

determine wage rates, even if the 

Administrator determines not to adopt 

the wage rates themselves, the 

Administrator may consider or use the 

data as part of the process to determine 

the prevailing wage within the meaning 

of 29 CFR 1.2, provided that the data is 

timely received and otherwise 

appropriate. The purpose of the 

proposed additional language is to 

clarify that the Administrator may, 

under certain circumstances, adopt 

State or local wage rates, and use them 

in wage determinations, even if the 

process and rules for State or local wage 

determinations differs from the 

Administrator’s. These proposed 

revisions therefore address the concerns 

WHD voiced to OIG that the current 

regulations, and in particular the 

definition of prevailing wage as 

interpreted by the ARB in Mistick, could 

preclude, or at least be in tension with, 

such an approach. 

iv. Section 1.4 Report of Agency 

Construction Programs 

Section 1.4 currently provides that, to 

the extent practicable, agencies that use 

wage determinations under the DBRA 

shall submit an annual report to the 

Department outlining proposed 

construction programs for the coming 

year. The reports described in § 1.4 

assist WHD in its multi-year planning 

efforts by providing information that 

may guide WHD’s decisions regarding 

when to survey wages for particular 

types of construction in a particular 

locality. These reports are an effective 

way for the Department to know where 

Federal and federally assisted 

construction will be taking place, and 

therefore where updated wage 

determinations will be of most use. 

Notwithstanding the importance of 

these reports to the program, contracting 

agencies have not regularly provided 

them to the Department. As a result, 

after careful consideration, the 

Department proposes to remove the 

language in the regulation that currently 

allows agencies to submit reports only 

‘‘to the extent practicable.’’ Instead, as 

proposed, § 1.4 would require Federal 

agencies to submit the construction 

reports. 

The Department also now proposes to 

adopt certain elements of two prior 

AAMs addressing these reports. In 1985, 

WHD updated its guidance regarding 

the agency construction reports, 

including by directing that Federal 

agencies submit the annual report by 

April 10 each year and providing a 

recommended format for such agencies 

to submit the report. See AAM 144 (Dec. 

27, 1985). In 2017, WHD requested that 

Federal agencies include in the reports 

proposed construction programs for an 

additional 2 fiscal years beyond the 

upcoming year. See AAM 224 (Jan. 17, 

2017). The proposed changes to § 1.4 

would codify these guidelines as part of 

the regulations. 

The Department also proposes new 

language requiring Federal agencies to 

include notification of any expected 

options to extend the terms of current 

construction contracts. The Department 

is proposing this change because—like a 

new contract—the exercise of an option 

requires the incorporation of the most 

current wage determination. See AAM 

157 (Dec. 9, 1992); see also 48 CFR 

22.404–12(a). Receiving information 

concerning expected options to extend 

the terms of current construction 

contracts therefore will help the 

Department assess where updated wage 

determinations are needed for Federal 

and federally assisted construction, 

which will in turn contribute to the 

effectiveness of the overall Davis-Bacon 

wage survey program. The Department 

also proposes that Federal agencies 

include the estimated cost of 

construction in their reports, as this 

information also will help the 

Department prioritize areas where 

updated wage determinations will have 

the broadest effects. 

In addition, the Department proposes 

to require that Federal agencies include 

in the annual report a notification of any 

significant changes to previously 

reported construction programs. In turn, 

the Department proposes eliminating 

the current directive that agencies notify 

the Administrator mid-year of any 

significant changes in their proposed 

construction programs. Such 

notification would instead be provided 

in Federal agencies’ annual reports. 

Finally, the Department proposes 

deleting the reference to the Interagency 

Reports Management Program as the 

requirements of that program were 

terminated by the General Services 

Administration (GSA) in 2005. See 70 

FR 3132 (Jan. 19, 2005). 

The Department does not believe that 

these proposed changes will result in 

significant burdens on contracting 

agencies, as the proposed provisions 

request only information already on 


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hand. Furthermore, any burden 

resulting from the new proposal should 

be offset by the proposed elimination of 

the current directive that agencies notify 

the Administrator of any significant 

changes in a separate mid-year report. 

However, the Department also seeks 

comment on any alternative methods 

through which the Department may 

obtain the information and eliminate the 

need to require the agency reports. 

v. Section 1.5 Publication of General 

Wage Determinations and Procedure for 

Requesting Project Wage Determinations 

The Department proposes a number of 

revisions to § 1.5 to clarify the 

applicability of general wage 

determinations and project wage 

determinations. Except as noted below, 

these revisions are consistent with 

longstanding Department practice and 

subregulatory guidance. 

First, the Department proposes to retitle § 1.5, currently titled ‘‘Procedure 

for requesting wage determinations,’’ as 

‘‘Publication of general wage 

determinations and procedure for 

requesting project wage 

determinations.’’ The proposed revision 

better reflects the content of the section 

as well as the distinction between 

general wage determinations, which the 

Department publishes for broad use, and 

project wage determinations, which are 

requested by contracting agencies on a 

project-specific basis. 

Additionally, the Department 

proposes to add language to § 1.5(a) to 

explain that a general wage 

determination contains, among other 

information, a list of wage rates 

determined to be prevailing for various 

classifications of laborers and 

mechanics for specified type(s) of 

construction in a given area. Likewise, 

the Department proposes to add 

language to § 1.5(b) to explain 

circumstances under which an agency 

may request a project wage 

determination, namely, where (1) the 

project involves work in more than one 

county and will employ workers who 

may work in more than one county; (2) 

there is no general wage determination 

in effect for the relevant area and type 

of construction for an upcoming project; 

or (3) all or virtually all of the work on 

a contract will be performed by one or 

more classifications that are not listed in 

the general wage determination that 

would otherwise apply, and contract 

award or bid opening has not yet taken 

place. The first of these three 

circumstances conforms to the proposed 

revision to the definition of ‘‘area’’ in 

§ 1.2 discussed above that would permit 

the issuance of project wage 

determinations for multi-county projects 

where appropriate. The latter two 

circumstances reflect the Department’s 

existing practice. See PWRB, DavisBacon Wage Determinations, at 4–5. 

The Department also proposes to add 

language to § 1.5(b) clarifying that 

requests for project wage determinations 

may be sent by means other than the 

mail, such as email or online 

submission, as directed by the 

Administrator. Additionally, consistent 

with the Department’s current practice, 

the Department proposes to add 

language to § 1.5(b) requiring that when 

requesting a project wage determination 

for a project that involves multiple types 

of construction, the requesting agency 

must attach information indicating the 

expected cost breakdown by type of 

construction. See PWRB, Davis-Bacon 

Wage Determinations, at 5. The 

Department also proposes to clarify that 

in addition to submitting the 

information specified in the regulation, 

a party requesting a project wage 

determination must submit all other 

information requested in the Standard 

Form (SF) 308. 

Finally, the Department proposes to 

clarify the term ‘‘agency’’ in § 1.5. In 

proposed § 1.5(b)(2) (renumbered, 

currently § 1.5(b)(1)), which describes 

the process for requesting a project wage 

determination, the Department proposes 

to delete the word ‘‘Federal’’ that 

precedes ‘‘agency.’’ This proposed 

deletion, and the resulting incorporation 

of the definition of ‘‘agency’’ from § 1.2, 

clarifies that, as already implied 

elsewhere in § 1.5, non-Federal agencies 

may request project wage 

determinations. See, e.g., § 1.5(b)(3) 

(proposed § 1.5(b)(4)) (explaining that a 

State highway department under the 

Federal-Aid Highway Acts may be a 

requesting agency). 

vi. Section 1.6 Use and Effectiveness 

of Wage Determinations 

(A) Organizational, Technical and 

Clarifying Revisions 

The Department proposes to 

reorganize, rephrase, and/or re-number 

several regulatory provisions and text in 

§ 1.6. These proposed revisions include 

adding headings to paragraphs and 

subparagraphs for clarity; changing the 

order of some of the paragraphs and 

subparagraphs so that discussions of 

general wage determinations precede 

discussions of project wage 

determinations, reflecting the fact that 

general wage determinations are (and 

have been for many years) the norm, 

whereas project wage determinations 

are the exception; adding the word 

‘‘project’’ before ‘‘wage determinations’’ 

in locations where the text refers to 

project wage determinations but could 

otherwise be read as referring to both 

general and project wage 

determinations; using the term 

‘‘revised’’ wage determination to refer 

both to cases where a wage 

determination is modified, such as due 

to updated CBA rates, and cases where 

a wage determination is re-issued 

entirely (referred to in the current 

regulatory text as a ‘‘supersedeas’’ wage 

determination), such as after a new 

wage survey; consolidating certain 

subsections that discuss revisions to 

wage determinations to eliminate 

redundancy and improve clarity; 

revising the regulation so that it 

references the publication of a general 

wage determination (consistent with the 

Department’s current practice of 

publishing wage determinations online), 

rather than publication of notice of the 

wage determination (which the 

Department previously did in the 

Federal Register); and using the term 

‘‘issued’’ to refer, collectively, to the 

publication of a general wage 

determination or WHD’s provision of a 

project wage determination. 

The Department also proposes minor 

revisions to clarify that there is only one 

appropriate use for wage determinations 

that are no longer current—which are 

referred to in current regulatory text as 

‘‘archived’’ wage determinations, and 

the Department now proposes to 

describe as ‘‘inactive’’ to conform to the 

terminology currently used on the 

System for Award Management 

(SAM.gov). That permissible 

circumstance is when the contracting 

agency initially failed to incorporate the 

correct wage determination into the 

contract and subsequently must 

incorporate the correct wage 

determination after contract award or 

the start of construction (a procedure 

that is discussed in § 1.6(f)). In that 

circumstance, even if the wage 

determination that should have been 

incorporated at the time of the contract 

award has since become inactive, it is 

still the correct wage determination to 

incorporate into the contract. 

The Department also proposes that 

agencies should notify the 

Administrator prior to engaging in 

incorporation of an inactive wage 

determination, and that agencies may 

not incorporate the inactive wage 

determination if the Administrator 

instructs otherwise. While the current 

regulation requires the Department to 

‘‘approv[e]’’ the use of an inactive wage 

determination, the proposed change 

permits the contracting agency to use an 

inactive wage determination under 

these limited circumstances as long as it 

has notified the Administrator and has 


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54AAM 130 states that where a project ‘‘includes 

construction items that in themselves would be 

otherwise classified, a multiple classification may 

be justified if such construction items are a 

substantial part of the project . . . [but] a separate 

classification would not apply if such construction 

items are merely incidental to the total project to 

which they are closely related in function,’’ and 

construction is incidental to the overall project. 

AAM 130, p. 2, n.1. AAM 131 similarly states that 

multiple schedules are issued if ‘‘the construction 

items are substantial in relation to project cost[s].’’ 

However, it, it further explains that ‘‘[o]nly one 

schedule is issued if construction items are 

‘incidental’ in function to the overall character of 

a project . . . and if there is not a substantial 

amount of construction in the second category.’’ 

AAM 131, p. 2. 

55Most recently, on December 14, 2020, the 

Administrator issued AAM 236, which states that 

‘‘[w]hen a project has construction items in a 

different category of construction, contracting 

agencies should generally apply multiple wage 

determinations when the cost of the construction 

exceeds either $2.5 million or 20 percent of the total 

project costs,’’ but that WHD will consider 

‘‘exceptional situations’’ on a case-by-case basis. 

AAM 236, pp. 1–2. 

not been instructed otherwise. The 

proposed change is intended to ensure 

that contracting agencies incorporate 

omitted wage determinations promptly 

rather than waiting for approval. 

The Department also proposes 

revisions to § 1.6(b) to clarify when 

contracting agencies must incorporate 

multiple wage determinations into a 

contract. The proposed language states 

that when a construction contract 

includes work in more than one area (as 

the term is defined in § 1.2), and no 

multi-county project wage 

determination has been obtained (as 

contemplated by the proposed revisions 

to § 1.2), the applicable wage 

determination for each area must be 

incorporated into the contract so that all 

workers on the project are paid the 

wages that prevail in their respective 

areas, consistent with the DBA. The 

Department also proposes language 

stating that when a construction 

contract includes work in more than one 

type of construction (as the Department 

has proposed to define the term in 

§ 1.2), the contracting agency must 

incorporate the applicable wage 

determination for each type of 

construction where the total work in 

that category of construction is 

substantial. This accords with the 

Department’s longstanding guidance 

published in AAM 130 (Mar. 17, 1978) 

and AAM 131 (July 14, 1978).54 The 

Department intends to continue 

interpreting the meaning of 

‘‘substantial’’ in subregulatory 

guidance.55 The Department requests 

comments on the above proposals, 

including potential ways to improve the 

standards for when and how to 

incorporate multiple wage 

determinations into a contract. 

The Department also proposes to add 

language to § 1.6(b) clarifying and 

reinforcing the responsibilities of 

contracting agencies, contractors, and 

subcontractors with regard to wage 

determinations. Specifically, the 

Department proposes to clarify in 

§ 1.6(b)(1) that contracting agencies are 

responsible for making the initial 

determination of the appropriate wage 

determination(s) for a project. In 

§ 1.6(b)(2), the Department proposes to 

clarify that contractors and 

subcontractors have an affirmative 

obligation to ensure that wages are paid 

to laborers and mechanics in 

compliance with the DBRA labor 

standards. 

The Department also proposes to 

revise language in § 1.6(b) that currently 

states that the Administrator ‘‘shall give 

foremost consideration to area practice’’ 

in resolving questions about ‘‘wage rate 

schedules.’’ In the Department’s 

experience, this language has created 

unnecessary confusion because 

stakeholders have at times interpreted it 

as precluding the Administrator from 

considering other factors when 

resolving questions about wage 

determinations. Specifically, the 

Department has long recognized that 

when ‘‘it is clear from the nature of the 

project itself in a construction sense that 

it is to be categorized’’ as either 

building, residential, heavy, or highway 

construction, ‘‘it is not necessary to 

resort to an area practice’’ to determine 

the proper category of construction. 

AAM 130, at 2; see also AAM 131, at 1 

(‘‘area practice regarding wages paid 

will be taken into consideration together 

with other factors,’’ when ‘‘the nature of 

the project in a construction sense is not 

clear.’’); Chastleton Apartments, WAB 

No. 84–09, 1984 WL 161751, at *4 (Dec. 

11, 1984) (because the ‘‘character of the 

structure in a construction sense 

dictates its characterization for DavisBacon wage purposes,’’ where there was 

a substantial amount of rehabilitation 

work being done on a project similar to 

a commercial building in a construction 

sense, it was ‘‘not necessary to 

determine whether there [was] an 

industry practice to recognize’’ the work 

as residential construction). The 

regulatory reference to giving ‘‘foremost 

consideration to area practice’’ in 

determining which wage determination 

to apply to a project arguably is in 

tension with the Department’s 

longstanding position, and has resulted 

in stakeholders contending on occasion 

that WHD or a contracting agency must 

in every instance conduct an exhaustive 

review of local area practice as to how 

work is classified, even if the nature of 

the project in a construction sense is 

clear. The revised language would 

resolve this perceived inconsistency and 

would streamline determinations 

regarding construction types by making 

clear that while the Administrator 

should continue considering area 

practice, the Administrator may 

consider other relevant factors, 

particularly the nature of the project in 

a construction sense. This proposed 

regulatory revision also would better 

align the Department’s regulations with 

the FAR, which does not call for 

‘‘foremost consideration’’ to be given to 

area practice in all circumstances, but 

rather provides, consistent with AAMs 

130 and 131, that ‘‘[w]hen the nature of 

a project is not clear, it is necessary to 

look at additional factors, with primary 

consideration given to locally 

established area practices.’’ 48 CFR 

22.404–2(c)(5). 

In § 1.6(e), the Department proposes 

to clarify that if, prior to contract award 

(or, as appropriate, prior to the start of 

construction), the Administrator 

provides written notice that the bidding 

documents or solicitation included the 

wrong wage determination or schedule, 

or that an included wage determination 

was withdrawn by the Department as a 

result of an Administrative Review 

Board decision, the wage determination 

may not be used for the contract, 

without regard to whether bid opening 

(or initial endorsement or the signing of 

a housing assistance payments contract) 

has occurred. Current regulatory text 

states that under such circumstances, 

notice of such errors is ‘‘effective 

immediately’’ but does not explain the 

consequences of such effect. The 

proposed language is consistent with 

the Department’s current practice and 

guidance. See Manual of Operations at 

35. 

In § 1.6(g), the Department proposes 

to clarify that under the Related Acts, if 

Federal funding or assistance is not 

approved prior to contract award (or the 

beginning of construction where there is 

no contract award), the applicable wage 

determination must be incorporated 

retroactive to the date of the contract 

award or the beginning of construction; 

the Department proposes to delete 

language indicating that a wage 

determination must be ‘‘requested,’’ as 

such language appears to contemplate a 

project wage determination, which in 

most situations will not be necessary as 

a general wage determination will 

apply. The Department also proposes to 

revise § 1.6(g) to clarify that it is the 

head of the applicable Federal agency 

who must request any waiver of the 

requirement that a wage determination 


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56 Depending on the circumstances, these types of 

contracts may be principally for services and 

therefore subject to the SCA, but contain substantial 

segregable work that is covered by the DBA. See 29 

CFR 4.116(c)(2). 

57The Department of Defense, for example, enters 

into such arrangements pursuant to the Military 

Housing Privatization Initiative, 10 U.S.C. 2871, et 

seq. 

provided under such circumstances be 

retroactive to the date of the contract 

award or the beginning of construction. 

The current version of § 1.6(g) uses the 

term ‘‘agency’’ and is therefore 

ambiguous as to whether it refers to the 

Federal agency providing the funding or 

assistance or the State or local agency 

receiving it. The proposed clarification 

that this term refers to Federal agencies 

reflects both the Department’s current 

practice and its belief that it is most 

appropriate for the relevant Federal 

agency, rather than a State or local 

agency, to bear these responsibilities, 

including assessing, as part of the 

waiver request, whether nonretroactivity would be necessary and 

proper in the public interest based on 

all relevant considerations. 

(B) Requirement To Incorporate Most 

Recent Wage Determinations Into 

Certain Ongoing Contracts 

The Department’s longstanding 

position has been to require that 

contracts and bid solicitations contain 

the most recently issued revision to a 

wage determination to be applied to 

construction work to the extent that 

such a requirement does not cause 

undue disruption to the contracting 

process. See 47 FR 23644, 23646 (May 

28, 1982); United States Army, ARB No. 

96–133, 1997 WL 399373, at *6 (July 17, 

1997) (‘‘The only legitimate reason for 

not including the most recently issued 

wage determination in a contract is 

based upon disruption of the 

procurement process.’’). Under the 

current regulations, a wage 

determination is generally applicable for 

the duration of a contract once 

incorporated. See 29 CFR 1.6(c)(2)(ii) 

and (c)(3)(vi). For clarity, the 

Department proposes to add language to 

§ 1.6(a) to state this affirmative 

principle. 

The Department also proposes to add 

a new section, § 1.6(c)(2)(iii), to clarify 

two circumstances where this general 

principle does not apply. First, the 

Department proposes to explain that the 

most recent version of any applicable 

wage determination(s) must be 

incorporated when a contract or order is 

changed to include additional, 

substantial construction, alteration, and/ 

or repair work not within the scope of 

work of the original contract or order— 

or to require the contractor to perform 

work for an additional time period not 

originally obligated, including where an 

agency exercises an option provision to 

unilaterally extend the term of a 

contract. This proposed change is 

consistent with the Department’s 

guidance, case law, and historical 

practice, under which such 

modifications are considered new 

contracts. See United States Army, 1997 

WL 399373, at *6 (noting that DOL has 

consistently ‘‘required that new DBA 

wage determinations be incorporated 

. . . when contracts are modified 

beyond the obligations of the original 

contract’’); Iowa Dep’t of Transp., WAB 

No. 94–11, 1994 WL 764106, at *5 (Oct. 

7, 1994) (‘‘A contract that has been 

‘substantially’ modified must be treated 

as a ‘new’ contract in which the most 

recently issued wage determination is 

applied.’’); AAM 157 (Dec. 9, 1992) 

(explaining that exercising an option 

‘‘requires a contractor to perform work 

for a period of time for which it would 

not have been obligated . . . under the 

terms of the original contract,’’ and as 

such, ‘‘once the option . . . is exercised, 

the additional period of performance 

becomes a new contract’’). Under these 

circumstances, the most recent version 

of any wage determination(s) must be 

incorporated as of the date of the change 

or, where applicable, the date the 

agency exercises its option to extend the 

contract’s term. These circumstances do 

not include situations where the 

contractor is simply given additional 

time to complete its original 

commitment or where the additional 

construction, alteration, and/or repair 

work in the modification is merely 

incidental. 

Additionally, modern contracting 

methods frequently involve a contractor 

agreeing to perform construction as the 

need arises over an extended time 

period, with the quantity and timing of 

the construction not known when the 

contract is awarded.56 Examples of such 

contracts would include, but are not 

limited to: A multi-year indefinitedelivery-indefinite-quantity (IDIQ) 

contract to perform repairs to a Federal 

facility when needed; a long-term 

contract to operate and maintain part or 

all of a facility, including repairs and 

renovations as needed; 57 or a schedule 

contract or blanket purchase agreement 

whereby a contractor enters into an 

agreement with a Federal agency to 

provide certain products or services 

(either of which may involve work 

subject to Davis-Bacon coverage, such as 

installation) or construction at agreedupon prices to various agencies or other 

government entities, who can order 

from the schedule at any time during 

the contract. The extent of the required 

construction, the time, and even the 

place where the work will be performed 

may be unclear at the time such 

contracts are awarded. 

Particularly when such contracts are 

lengthy, using an outdated wage 

determination from the time of the 

underlying contract award is contrary to 

the text and purpose of the DBA because 

it does not sufficiently ensure that 

workers are paid prevailing wages. 

Additionally, in the Department’s 

experience, agencies are sometimes 

inconsistent as to how they incorporate 

wage determination revisions into these 

types of contracts. Some agencies do so 

every time additional Davis-Bacon work 

is obligated, others do so annually, 

others only incorporate applicable wage 

determinations at the time the original, 

underlying contract is awarded, and 

sometimes no wage determination is 

incorporated at all. This inconsistency 

can prevent the payment of prevailing 

wages to workers and can disrupt the 

contracting process. 

Accordingly, the Department 

proposes to require, for these types of 

contracts, that contracting agencies 

incorporate the most up-to-date 

applicable wage determination(s) 

annually on each anniversary date of a 

contract award or, where there is no 

contract, on each anniversary date of the 

start of construction, or another similar 

anniversary date where the agency has 

sought and received prior approval from 

the Department for the alternative date. 

This proposal is consistent with the 

rules governing wage determinations 

under the SCA, which require that the 

contracting agency obtain a wage 

determination prior to the ‘‘[a]nnual 

anniversary date of a multi-year contract 

subject to annual fiscal appropriations 

of the Congress.’’ See 29 CFR 

4.4(a)(1)(v). Additionally, consistent 

with the discussion above, if an option 

is exercised for one of these types of 

contracts, the most recent version of any 

wage determination(s) would need to be 

incorporated as of the date the agency 

exercises its option to extend the 

contract’s term (subject to the 

exceptions set forth in proposed 

§ 1.6(c)(2)(ii)), even if that date did not 

coincide with the anniversary date of 

the contract. When any construction 

work under such a contract is obligated, 

the most up-to-date wage 

determination(s) incorporated into the 

underlying contract must be included in 

each task order, purchase order, or any 

other method used to direct 

performance. Once an applicable wage 

determination revision is included in 

such an order, that revision would 

generally be applicable until the 


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58WHD similarly updates weighted average rates 

based entirely on collectively bargained rates 

(currently designated as ‘‘UAVG’’ rates) using 

periodic wage and fringe benefit increases in the 

CBAs. 

59 ‘‘Nonunion-prevailing rates,’’ as used in the 

GAO report, is a misnomer, as it refers to weighted 

average rates that, as noted, are published whenever 

the same wage rate is not paid to a majority of 

workers in the classification, including when much 

or even most of the data reflects union wages, just 

not that the same union wage was paid to a majority 

of workers in the classification. 

60See note 8, supra. 

61See note 8, supra. 

construction items originally called for 

by that order are completed, even if the 

completion of that work extends beyond 

the twelve-month period following the 

most recent anniversary date of the 

underlying contract. By proposing this 

revision, the Department seeks to ensure 

that workers are being paid prevailing 

wages within the meaning of the Act, 

provide certainty and predictability to 

agencies and contractors as to when, 

and how frequently, wage rates in these 

types of contracts can be expected to 

change, and bring consistency to 

agencies’ application of the DBA. The 

Department has also included language 

noting that contracting and ordering 

agencies remain responsible for 

ensuring that the applicable updated 

wage determination(s) is included in 

task orders, purchase orders, or other 

similar contract instruments that are 

issued under the master contract. 

(C) 29 CFR 1.6(c)(1)—Periodic 

Adjustments 

The Department proposes to add a 

provision to 29 CFR 1.6(c)(1) to 

expressly provide a mechanism to 

regularly update certain noncollectively bargained prevailing wage 

rates. Such rates (both base hourly 

wages and fringe benefits) would be 

updated between surveys so that they 

do not become out-of-date and fall 

behind wage rates in the area. 

(1) Background 

Based on the data that it receives 

through its prevailing wage survey 

program, WHD generally publishes two 

types of prevailing wage rates on the 

Davis-Bacon wage determinations that it 

issues: (1) Modal rates (under the 

current majority rule, wage rates that are 

paid to a majority of workers in a 

particular classification), and (2) 

weighted average rates, which are 

published whenever the wage data 

received by WHD reflects that no single 

wage rate was paid to a majority of 

workers in the classification. See 29 

CFR 1.2(a)(1). 

Under the current majority rule, 

modal majority wage rates typically 

reflect collectively bargained wage rates. 

When a CBA rate prevails on a general 

wage determination, WHD updates that 

prevailing wage rate based on periodic 

wage and fringe benefit increases in the 

CBA. Manual of Operations at 74–75; 

see also Mistick Construction, 2006 WL 

861357, at *7 n.4.58 However, when the 

prevailing wage is set through the 

weighted average method based on noncollectively bargained rates or a mix of 

collectively bargained rates and noncollectively bargained rates, or when a 

non-collectively bargained rate prevails, 

such wage rates (currently designated as 

‘‘SU’’ rates) on general wage 

determinations are not updated between 

surveys, and therefore can become outof-date. This proposal would expand 

WHD’s practice of updating collectively 

bargained rates between surveys to 

include updating non-collectively 

bargained rates. 

While the goal of WHD is to conduct 

surveys in each area every 3 years, 

because of the resource intensive nature 

of the wage survey process and the vast 

number of survey areas, many years can 

pass between surveys conducted in any 

particular area. The 2011 GAO Report 

found that, as of 2010, while 36 percent 

of ‘‘nonunion-prevailing rates’’ 59 were 3 

years old or less, almost 46 percent of 

these rates were 10 or more years old. 

2011 GAO Report at 18.60 As a result of 

lengthy intervals between Davis-Bacon 

surveys, the real value of the effectivelyfrozen rates erodes as compensation in 

the construction industry and the cost of 

living rise. The resulting decline in the 

real value of prevailing wage rates may 

adversely affect construction workers 

the DBA was intended to protect. See 

Coutu, 450 U.S. at 771 (‘‘The Court’s 

previous opinions have recognized that 

‘[o]n its face, the Act is a minimum 

wage law designed for the benefit of 

construction workers.’ ’’ (citations 

omitted)). 

This issue is one that program 

stakeholders raised with the GAO. 

According to several union and 

contractor officials interviewed in the 

2011 report, the age of the Davis-Bacon 

‘‘nonunion-prevailing rates’’ means they 

often do not reflect actual prevailing 

wages. 2011 GAO Report at 18.61 As a 

result, the officials said it is ‘‘more 

difficult for both union and nonunion 

contractors to successfully bid on 

Federal projects because they cannot 

recruit workers with artificially low 

wages but risk losing contracts if their 

bids reflect more realistic wages.’’ Id. 

Regularly updating these rates would 

alleviate this situation and better protect 

workers’ wage rates. The Department 

anticipates that updated rates would 

also better reflect construction industry 

compensation in communities where 

federally funded construction is 

occurring. 

This proposal to update noncollectively bargained rates is consistent 

with, and builds upon, the current 

regulatory text at 29 CFR 1.6(c)(1), 

which provides that wage 

determinations ‘‘may be modified from 

time to time to keep them current.’’ This 

regulatory provision provides legal 

authority for updating wage rates, and it 

has been used as a basis for updating 

collectively bargained prevailing wage 

rates based on CBA submissions 

between surveys. See Manual of 

Operations at 74–75. In this rule, the 

Department proposes to extend this 

practice to non-collectively bargained 

rates based on ECI data. The Department 

believes that ‘‘chang[ed] 

circumstances’’—including an increase 

in weighted average rates—and the lack 

of an express mechanism to update noncollectively bargained rates between 

surveys under the existing regulations 

support this proposed ‘‘extension of 

current regulation[s]’’ to better 

effectuate the DBRA’s purpose. Motor 

Vehicle Mfrs. Ass’n of U.S., Inc. v. State 

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 

42 (1983); see also In re Permian Basin 

Area Rate Cases, 390 U.S. 747, 780 

(1968) (Court ‘‘unwilling to prohibit 

administrative action imperative for the 

achievement of an agency’s ultimate 

purposes’’ absent ‘‘compelling evidence 

that such was Congress’ intention’’). 

This proposal is consistent with the 

Department’s broad authority under the 

statute to ‘‘establish the method to be 

used’’ to determine DBA prevailing 

wage rates. Donovan, 712 F.2d at 63. 

The Department believes that the new 

periodic adjustment proposal will ‘‘on 

balance result in a closer approximation 

of the prevailing wage’’ for these rates 

and therefore is an appropriate 

extension of the current regulation. Id. 

at 630 (citing American Trucking Ass’ns 

v. Atchison, T. & S.F. Ry., 387 U.S. 397, 

416 (1967)). 

This proposed new provision is 

particularly appropriate because it seeks 

to curb a practice the DBA and Related 

Acts were enacted to prevent: Payment 

of ‘‘substandard’’ wages (here, out-ofdate non-collectively bargained rates) on 

covered construction projects that are 

less than current wages for similar work 

prevailing in the private sector. 

Regularly increasing non-collectively 

bargained weighted average and 

prevailing rates that are more than 3 

years old would be consistent with the 

DBA’s purpose of protecting local wage 

standards. 


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62Because this particular index is unavailable 

prior to 2001, the Department proposes to use the 

compensation growth rate based on the change in 

the ECI total compensation index for the goodsproducing industries (which includes the 

construction industry) to bring the relatively small 

percentage of non-collectively bargained rates 

published before 2001 up to their 2000 value. The 

Department would then adjust the rates up to the 

present value using the ECI total compensation 

index for construction, extraction, farming, fishing, 

and forestry occupations. 

As proposed, the periodic adjustment 

provision would help effectuate the 

DBA’s purpose by updating significantly 

out-of-date non-collectively bargained 

wage rates, including thousands of wage 

rates that were published decades ago, 

that have not been updated since, and 

that therefore likely have fallen behind 

currently prevailing local rates. As of 

September 30, 2018, over 7,100 noncollectively bargained wage rates, or 5.3 

percent of the 134,738 total unique 

published rates at that time, had not 

been updated in 11 to 40 years. See 

2019 OIG Report at 3, 5. Updating such 

out-of-date construction wages would 

better align with the DBRA’s main 

objective. 

Tethering the proposed periodic 

updates to existing non-collectively 

bargained prevailing wage rates is 

intended to keep such rates more 

current in the interim period between 

surveys. It is reasonable to assume that 

non-collectively bargained rates, like 

other rates that the Secretary has 

determined to prevail, generally 

increase over time like other 

construction compensation measures. 

See, e.g., Table A (showing recent 

annual rates of union and non-union 

construction wage increases in the 

United States); Table B (showing 

Employment Cost Index changes from 

2001 to 2020). 

TABLE A—CURRENT POPULATION SURVEY (CPS) WAGE GROWTH BY UNION STATUS—CONSTRUCTION

Year 

Median weekly earnings Members of 

unions 

(%) 

Non-union 

Members of (%) 

unions Non-union 

2015 ................................................................................................................. $1,099 $743 ........................ ........................

2016 ................................................................................................................. 1,168 780 6 5 

2017 ................................................................................................................. 1,163 797 0 2 

2018 ................................................................................................................. 1,220 819 5 3 

2019 ................................................................................................................. 1,257 868 3 6 

2020 ................................................................................................................. 1,254 920 0 6 

Average .................................................................................................... ........................ ........................ 3 4 

Source: Current Population Survey, Table 43: Median weekly earnings of full-time wage and salary workers by union affiliation, occupation, 

and industry, Bureau of Labor Statistics, https://www.bls.gov/cps/cpsaat43.htm (last modified Jan. 22, 2021). 

Note: Limited to workers in the construction industry. 

TABLE B—EMPLOYMENT COST INDEX

(ECI), 2001–2020, TOTAL COMPENSATION OF PRIVATE WORKERS IN

CONSTRUCTION, AND EXTRACTION, 

FARMING, FISHING, AND FORESTRY

OCCUPATIONS

[Average 12-month percent changes (rounded 

to the nearest tenth)] 

Year Average % 

change 

2001 ............................................ 4.5 

2002 ............................................ 3.5 

2003 ............................................ 3.9 

2004 ............................................ 4.5 

2005 ............................................ 3.1 

2006 ............................................ 3.5 

2007 ............................................ 3.5 

2008 ............................................ 3.7 

2009 ............................................ 1.7 

2010 ............................................ 2.0 

2011 ............................................ 1.6 

2012 ............................................ 1.5 

2013 ............................................ 1.8 

2014 ............................................ 2.0 

2015 ............................................ 2.0 

2016 ............................................ 2.4 

2017 ............................................ 2.7 

2018 ............................................ 2.3 

2019 ............................................ 2.3 

2020 ............................................ 2.4 

Source: Bureau of Labor Statistics, https://

www.bls.gov/web/eci/eci-constant-realdollar.pdf. 

(2) Periodic Adjustment Proposal 

This proposal seeks to update noncollectively bargained rates that are 3 or 

more years old by adjusting them 

regularly based on total compensation 

data to keep pace with current 

construction wages and benefits. 

Specifically, the Department proposes to 

add language to § 1.6(c)(1) to expressly 

permit adjustments to non-collectively 

bargained rates on general wage 

determinations based on U.S. Bureau of 

Labor Statistics (BLS) Employment Cost 

Index (ECI) data or its successor data. 

The Department’s proposal provides 

that non-collectively bargained rates 

may be adjusted based on ECI data no 

more frequently than once every 3 years, 

and no sooner than 3 years after the date 

of the rate’s publication, continuing 

until the next survey results in a new 

general wage determination. This 

proposed interval would be consistent 

with WHD’s goal to increase the 

percentage of Davis-Bacon wage rates 

that are 3 years old or less. Under the 

proposal, non-collectively bargained 

rates (wages and fringe benefits) would 

be adjusted from the date the rate was 

originally published and brought up to 

their present value. Going forward 

under the proposed 30-percent rule, any 

non-collectively bargained prevailing or 

weighted average rates published after 

this rule became effective would be 

updated if they were not re-surveyed 

within 3 years after publication. The 

Department anticipates implementing 

this new regulatory provision by issuing 

general wage determination 

modifications. 

The Department believes that ECI data 

is appropriate for these proposed rate 

adjustments because the ECI tracks both 

wages and benefits, and may be used as 

a proxy for construction compensation 

changes over time. Therefore, the 

Department proposes to use a 

compensation growth rate based on the 

change in the ECI total compensation 

index for construction, extraction, 

farming, fishing, and forestry 

occupations to adjust non-collectively 

bargained rates (both base hourly and 

fringe benefit rates) published in 2001 

or after.62

In addition, because updating noncollectively bargained rates would be 

resource-intensive, the Department does 

not anticipate making all initial 

adjustments to such rates that are 3 or 

more years old simultaneously, but 

rather anticipates that such adjustments 

would be made over a period of time 

(though as quickly as is reasonably 

possible). Similarly, particularly due to 

the effort involved, the process of 

adjusting non-collectively bargained 

rates that are 3 or more years old is 


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63As discussed above in part III.B.1.iii.(A), for 

residential and building construction, this 

expansion of the scope of data considered also 

involves the use of data from Federal and federally 

assisted projects subject to Davis-Bacon labor 

standards at each county-grouping level when data 

from non-Federal projects is not sufficient. Data 

from Federal and federally assisted projects subject 

to Davis-Bacon labor standards is used in all 

instances to determine prevailing wage rates for 

heavy and highway construction. 

64OMB does not specifically identify counties as 

‘‘rural’’ and disclaims that its MSA standards 

‘‘produce an urban-rural classification.’’ 75 FR 

37246, 37246 (June 28, 2010). Nonetheless, because 

OMB identifies counties that have metropolitan 

characteristics as part of MSAs, the practice of the 

WHD Administrator has been to designate counties 

as rural if they are not within an OMB-designated 

MSA and metropolitan if they are within an MSA. 

See Mistick Construction, 2006 WL 861357, at *8. 

unlikely to begin until approximately 6 

months to a year after a final rule 

implementing this proposal becomes 

effective. 

The Department seeks comments on 

this proposal, and invites comments on 

alternative data sources to adjust noncollectively bargained rates. The 

Department considered proposing to use 

the Consumer Price Index (CPI) but 

considers this data source to be a less 

appropriate index to use to update noncollectively bargained rates because the 

CPI measures movement of consumer 

prices as experienced by day-to-day 

living expenses, unlike the ECI, which 

measures changes in the costs of labor 

in particular. The CPI does not track 

changes in wages or benefits, nor does 

it reflect the costs of construction 

workers nationwide. The Department 

nonetheless invites comments on use of 

the CPI to adjust non-collectively 

bargained rates. 

(D) 29 CFR 1.6(f) 

Section 1.6(f) addresses post-award 

determinations that a wage 

determination has been wrongly omitted 

from a contract. The Department’s 

proposed changes to this subsection are 

discussed below in part III.B.3.xx 

(‘‘Post-award determinations and 

operation-of-law’’), together with 

proposed changes to §§ 5.5 and 5.6. 

vii. Section 1.7 Scope of Consideration 

The Department’s existing regulations 

in § 1.7 address two related concepts. 

The first is the level of geographic 

aggregation of wage data that should be 

the default for making a wage 

determination. The second is how the 

Department should expand that level of 

geographic aggregation when it does not 

have sufficient wage survey data to 

make a wage determination at the 

default level. The Department is 

considering whether to update the 

language of § 1.7 to more clearly 

describe WHD’s process for expanding 

the geographic scope of survey data, and 

whether to modify the regulations by 

eliminating the current bar on mixing 

wage data from ‘‘metropolitan’’ and 

‘‘rural’’ counties when the geographic 

scope is expanded. 

(A) Background 

With regard to the first concept 

addressed in § 1.7, the default level of 

geographic aggregation, the DBA 

specifies that the relevant geographic 

area for determining the prevailing wage 

is the ‘‘civil subdivision of the State’’ 

where the contract is performed. 40 

U.S.C. 3142(b). For many decades now, 

the Secretary has used the county as the 

default civil subdivision for making a 

wage determination. The Department 

codified this procedure in the 1981– 

1982 rulemaking in § 1.7(a), in which it 

stated that the relevant area for a wage 

determination will ‘‘normally be the 

county.’’ 29 CFR 1.7(a); see 47 FR 

23644, 23647 (May 28, 1982). 

The use of the county as the default 

‘‘area’’ means that in making a wage 

determination the Administrator first 

considers the wage survey data WHD 

has received from projects of a ‘‘similar 

character’’ in a given county. See 40 

U.S.C. 3142(b). If there is sufficient 

county-level data for a ‘‘corresponding 

class[ ]’’ of covered workers (e.g., 

laborers, painters, etc.) working on those 

projects, the Administrator then makes 

a determination of the prevailing wage 

rate for that class of workers. Id; 29 CFR 

1.7(a). This has a practical corollary for 

contracting agencies—in order to 

determine what wages apply to a given 

construction project, the agency needs 

to identify the county (or counties) in 

which the project will be constructed 

and obtain the wage determination for 

the correct type of construction for that 

county (or counties) from SAM.gov. 

The second concept currently 

addressed in § 1.7 is the procedure that 

WHD follows when it does not receive 

sufficient survey wage data at the 

county level to determine a prevailing 

wage rate for a given classification of 

workers. This process is described in 

detail in the 2013 Chesapeake Housing 

ARB decision. 2013 WL 5872049. In 

short, if there is insufficient data to 

determine a prevailing wage rate for a 

classification of workers in a given 

county, WHD will determine that 

county’s wage-rate for that classification 

by progressively expanding the 

geographic scope of data (still for the 

same classification of workers) that it 

uses to make the determination. First, 

WHD expands to include a group of 

surrounding counties at a ‘‘group’’ level. 

See 29 CFR 1.7(b) (discussing 

consideration of wage data in 

‘‘surrounding counties’’); Chesapeake 

Housing, 2013 WL 5872049, at *2–3. If 

there is still not sufficient data at the 

group level, WHD considers a larger 

grouping of counties in the State called 

a ‘‘supergroup,’’ and thereafter uses data 

at a statewide level. See 29 CFR 1.7(c); 

Chesapeake Housing, 2013 WL 

5872049, at *2–3.63 Currently, WHD 

identifies county groupings by using 

metropolitan statistical areas (MSAs) 

and other related designations from the 

Office of Management and Budget 

(OMB). See 75 FR 37246 (June 28, 2010). 

The current regulations do not define 

the term ‘‘surrounding counties’’ that 

delineates the initial county grouping 

level. However, the provision at § 1.7(b) 

that describes ‘‘surrounding counties’’ 

limits the counties that may be used in 

this grouping by excluding the use of 

any data from a ‘‘metropolitan’’ county 

in any wage determination for a ‘‘rural’’ 

county, and vice versa. 29 CFR 1.7(b). 

To be consistent with the existing 

prohibition at § 1.7(b), WHD’s current 

practice is to use the OMB designations 

(discussed above) to identify whether a 

county is metropolitan or rural.64 Under 

the current constraints, such a proxy 

designation is reasonable, and the 

practice has been approved by the ARB. 

See Mistick Construction, 2006 WL 

861357, at *7–8. Although the language 

in § 1.7(b) does not apply explicitly to 

the consideration of data above the 

surrounding county level, see § 1.7(c), 

the Department’s current procedures do 

not mix metropolitan and rural county 

data at any level in the expansion of 

geographic scope, including even at the 

statewide level. 

(B) Proposals for Use of ‘‘Metropolitan’’ 

and ‘‘Rural’’ Wage Data 

The current language in § 1.7(b) 

barring the cross-consideration of 

metropolitan and rural wage data was 

added to the Department’s regulations 

in the 1981–1982 rulemaking. See 47 FR 

23644 (May 28, 1982). As the 

Department noted in that rulemaking, 

the prior practice up until that point 

had been to allow the Department to 

look to metropolitan wage rates for 

nearby rural areas when there was 

insufficient data from the rural area to 

determine a prevailing wage rate. See id. 

at 23647. In explaining the change in 

the longstanding policy, the Department 

noted commenters had stated that 

‘‘importing’’ higher rates from 

metropolitan areas caused labor 

disruptions where workers were 

‘‘unwilling to return to their usual pay 

scales after the project was completed.’’ 

Id. The Department stated that a more 


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65See note 8, supra. 

66http://jedsnet.com/journals/jeds/Vol_8_No_4_

December_2020/1.pdf. 

67http://ijah.cgrd.org/images/Vol6No1/3.pdf. 

68The Department also considered this option in 

the 1981–1982 rulemaking, but similarly concluded 

that the proposal to use the county as the basic unit 

of a wage determination was the ‘‘most 

administratively feasible.’’ See 47 FR 23644, 23647 

(May 28, 1982). 

69The Department is also considering the option 

of more explicitly tailoring the ban on mixing 

metropolitan and rural data so that it applies only 

at the ‘‘surrounding counties’’ level, but not at the 

statewide level or an intermediate level. 

appropriate alternative would be to use 

data from rural counties in other parts 

of the State. See id. To effectuate this, 

it imposed the bar on crossconsideration of rural and metropolitan 

county data in § 1.7(b). 

The Department has received 

feedback that that this blanket decision 

did not adequately consider the 

heterogeneity of commuting patterns 

and local labor markets between and 

among counties that may be designated 

overall as ‘‘rural’’ or ‘‘metropolitan.’’ As 

noted in the 2011 GAO report, the DBA 

program has been criticized for using 

‘‘arbitrary geographic divisions,’’ given 

that the relevant regional labor markets, 

which are reflective of area wage rates, 

‘‘frequently cross county and state 

lines.’’ 2011 GAO Report at 24.65 OMB 

itself notes that ‘‘[c]ounties included in 

Metropolitan and Micropolitan 

Statistical Areas and many other 

counties may contain both urban and 

rural territory and population.’’ 75 FR 

37246, 37246 (June 28, 2010). 

The Department understands the 

point articulated in the GAO report that 

actual local labor markets are not 

constrained by or defined by county 

lines—even those lines between 

counties identified (by OMB or 

otherwise) as ‘‘metropolitan’’ or ‘‘rural.’’ 

This is particularly the case for the 

construction industry, in which workers 

tend to commute longer distances than 

other professionals—resulting in 

geographically larger labor markets. See, 

e.g., Keren Sun et al., Hierarchy 

Divisions of the Ability to Endure 

Commute Costs: An Analysis based on 

a Set of Data about Construction 

Workers, J. of Econ. & Dev. Stud., Dec. 

2020, at 1, 6.66 Even within the 

construction industry, workers in 

certain trades have greater or lesser 

tolerance for longer commutes. Keren 

Sun, Analysis of the Factors Affecting 

the Commute Distance/Time of 

Construction Workers, Int’l J. of Arts & 

Humanities, June 2020, at 34–35.67

By excluding a metropolitan county’s 

wage rates from consideration in a 

determination for a bordering rural 

county, the current language in § 1.7(b) 

ignores the potential for projects in both 

counties to compete for the same supply 

of construction workers and be in the 

same local construction labor market. In 

many cases, the workers working on the 

metropolitan county projects may 

themselves live across the county lines 

in the neighboring rural county and 

commute to the urban projects. In such 

cases, under the current bar, the 

Department may not be able to use the 

wage rates of the same workers to 

determine the prevailing wage rate for 

projects in the county in which they 

live. Instead, WHD would import wage 

rates from other ‘‘rural’’-designated 

counties, potentially somewhere far 

across the State. Such a practice can 

result in Davis-Bacon wage rates that are 

lower than the wage rates that actually 

prevail in a bi-county labor market and 

that are based on wage data from distant 

locales rather than from neighboring 

counties. 

For these reasons, the Department 

believes that limitations based on binary 

rural and metropolitan designations at 

the county level can result in geographic 

groupings that at times do not fully 

account for the realities of relevant 

construction labor markets. To address 

this concern, the Department has 

considered the possibility of using 

smaller basic units than the county as 

the initial area for a wage 

determination—and expanding to labor 

market areas that do not directly track 

county lines. The Department, however, 

has concluded that continuing the 

longstanding practice of using counties 

as the civil subdivision basis unit is 

more administratively feasible.68 As a 

result, the Department is now 

considering the option of eliminating 

the metropolitan-rural bar in § 1.7(b) 

and relying instead on other approaches 

to determine how to appropriately 

expand geographic aggregation when 

necessary. 

In addition to allowing WHD to 

account for actual construction labor 

market patterns, this proposal could 

have other benefits. It could allow WHD 

to publish more rates at the group level 

rather than having to rely on data from 

larger geographic areas, because it could 

increase the number of counties that 

may be available to supply data at the 

group level. The proposal could also 

allow WHD to publish more rates 

overall by authorizing the use of both 

metropolitan and rural county data 

together when it must rely on statewide 

data. Combining rural and urban data at 

the State level would be a final option 

for geographic expansion when 

otherwise the data could be insufficient 

to identify any prevailing wage at all.69

The Department believes that the 

purposes of the Act are better served by 

using such combined statewide data to 

determine the prevailing wage, when 

the alternative could be to fail to 

publish a wage rate at all. 

The proposal to eliminate the strict 

rural-metropolitan bar would result in a 

program that would be more consistent 

with the Department’s original practice 

between 1935 and the 1981–1982 

rulemaking. Reverting to this prior 

status quo would be appropriate in light 

of the text and legislative history of the 

DBA. Congressional hearings shortly 

after the passage of the initial 1931 Act 

suggest that Congress understood the 

DBA as allowing the Secretary to refer 

to metropolitan rates where rural rates 

were not available—including by 

looking to the nearest city when there 

was insufficient construction in a 

village or ‘‘little town’’ to determine a 

prevailing wage. See 75 Cong. Rec. 

12,366, 12,377 (1932) (remarks of Rep. 

Connery). Likewise, the Department’s 

original 1935 regulations directed the 

Department to ‘‘the nearest large city’’ 

when there had been no similar 

construction in the locality in recent 

years. See Labor Department Regulation 

No. 503 section 7(2) (1935). 

In light of the above, the Department 

solicits comments on its proposal to 

allow the Administrator the discretion 

to determine reasonable county 

groupings, at any level, without the 

requirement to make a distinction 

between counties WHD designates as 

rural or metropolitan. 

(C) Proposals for Amending the County 

Grouping Methodology 

In addition to considering whether to 

eliminate the metropolitan-rural proviso 

language in § 1.7(b), the Department is 

also considering other potential changes 

to the methods for describing the county 

groupings procedure. 

(1) Defining ‘‘Surrounding Counties’’ 

One potential change is to more 

precisely define ‘‘surrounding 

counties,’’ as used in § 1.7(b). Because 

the term is not currently defined, this 

has from time to time led to confusion 

among stakeholders regarding whether a 

county can be considered 

‘‘surrounding’’ if it does not share a 

border with the county for which more 

data is needed. As noted above, WHD’s 

current method of creating 

‘‘surrounding county’’ groupings is to 

use OMB-designed MSAs to create predetermined county groupings. This 

method does not require that all 

counties in the grouping share a border 

with (in other words, be a direct 

neighbor to) the county in need. Rather, 


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70 In addition, in certain limited circumstances, 

WHD has allowed the aggregation of counties at the 

‘‘surrounding counties’’ level that are not part of a 

contiguous grouping of all-metropolitan or all-rural 

counties. This has been considered appropriate 

where, for example, two rural counties border an 

MSA on different sides and do not themselves share 

a border with each other or with any other rural 

counties. Under WHD’s current practice, those two 

rural counties could be considered to be a county 

group at the ‘‘surrounding counties’’ level even 

though they neither share a border nor are part of 

a contiguous group of counties. 

71For example, the Department could rely on 

county groupings in use by State governments for 

little Davis-Bacon laws or similar purposes, as long 

as they are contiguous county groupings that 

reasonably can be characterized as ‘‘surrounding 

counties.’’ 

at the ‘‘surrounding county’’ grouping, 

WHD will include counties in a group 

as long as they are all a part of the same 

contiguous area of either metropolitan 

or rural counties—even though each 

county included may not be directly 

adjacent to every other county in the 

group.70

For example, in the Chesapeake 

Housing case, one ‘‘surrounding 

county’’ group that WHD had compiled 

included the independent city of 

Portsmouth, combined with Virginia 

Beach, Norfolk, and Suffolk counties. 

2013 WL 5872049, at *1, n.1. That was 

appropriate because those jurisdictions 

all were part of the same contiguous 

OMB-designated metropolitan area, and 

each county thus shared a border with 

at least one other county in the group— 

even if they did not all share a border 

with every other county in the group. 

See id. at *5–6. Thus, by using the 

group, WHD combined data from 

Virginia Beach and Suffolk counties at 

the ‘‘surrounding counties’’ level, even 

though those two counties do not 

themselves touch each other. 

This grouping strategy—of relying on 

OMB MSA designations—has been 

found to be consistent both with the 

term ‘‘surrounding counties’’ as well as 

with the metropolitan-rural limitation 

proviso in § 1.7(b). See Mistick, 2006 

WL 861357, at *7–8. An OMBdesignated metropolitan statistical area 

is, at least by OMB’s definition, made 

up entirely of ‘‘metropolitan’’ counties 

and thus WHD can group these counties 

together without violating the proviso. 

See id.; Manual of Operations at 39. 

Thus, the Department has used these 

OMB designations to put together predetermined groups that can be used as 

the same first-level county grouping for 

any county within the grouping. While 

relying on OMB designations is not the 

only way that the Department could 

currently group counties together and 

comply with the proviso, the 

Department recognizes that, if it 

eliminates the metropolitan-rural 

proviso at § 1.7(b), it could be helpful to 

include in its place some further 

language to explain or delimit the 

meaning of ‘‘surrounding counties’’ in 

another way that would be both 

administrable and faithful to the 

purpose of the Davis-Bacon and Related 

Acts. 

The first option would be to eliminate 

the metropolitan-rural proviso but not 

replace it with a further definition or 

limitation for ‘‘surrounding counties.’’ 

The Department has included this 

proposal in the proposed regulatory text 

of this NPRM. The term ‘‘surrounding 

counties’’ is not so ambiguous and 

devoid of meaning that it requires 

further definition. Even without some 

additional specific limitation, the 

Department believes the term could 

reasonably be read to require that such 

a grouping be of a contiguous grouping 

of counties as the Department currently 

requires in its use of OMB MSAs (as 

described above), with limited 

exceptions. Thus, while the elimination 

of the proviso would allow a nearby 

rural county to be included in a 

‘‘surrounding county’’ grouping with 

metropolitan counties that it borders, it 

would not allow WHD to append a 

faraway rural county to a ‘‘surrounding 

county’’ group made up entirely of 

metropolitan counties with which the 

rural county shares no border at all. 

Conversely, the term does not allow the 

Department to consider a faraway 

metropolitan county to be part of the 

‘‘surrounding counties’’ of a grouping of 

rural counties with which the 

metropolitan county shares no border at 

all. Although containing such an 

inherent definitional limit, this first 

option would allow the Department the 

discretion to develop new 

methodologies of grouping counties at 

the ‘‘surrounding county’’ level and 

apply them as along as it does so in a 

manner that is not arbitrary or 

capricious.71

The second option the Department is 

considering is to limit surrounding 

counties to solely those counties that 

share a border with the county for 

which additional wage data is sought. 

Such a limitation would create a 

relatively narrow grouping at the initial 

county grouping stage—narrower than 

the current practice of using OMB 

MSAs. As discussed above, construction 

workers tend to commute longer than 

other professionals. This potential onecounty-over grouping limitation would 

ensure that, in the vast majority of cases, 

the ‘‘surrounding county’’ grouping 

would not expand outward beyond the 

home counties or commuting range of 

the construction workers who would 

work on projects in the county at issue. 

The narrowness of such a limitation 

would also be a drawback, as it could 

lead to fewer wage rates being set at the 

‘‘surrounding counties’’ group level. 

Another drawback is that such a 

limitation would not allow for the use 

of pre-determined county groupings that 

would be the same for a number of 

counties—because each county may 

have a different set of counties with 

which it alone shares a border. This 

could result in a significant burden on 

WHD in developing far more countygrouping rates than it currently does, 

and could result in less uniformity in 

required prevailing wage rates among 

nearby counties. 

A third option would be to include 

language that would define the 

‘‘surrounding counties’’ grouping as a 

grouping of counties that are all a part 

of the same ‘‘contiguous local 

construction labor market’’ or some 

comparable definition. In practice, this 

methodology could result in similar (but 

not identical) groupings as the current 

methodology, as the Department could 

decide to use OMB designations to 

assist in determining what counties are 

part of the contiguous local labor 

market. Without the strict metropolitanrural proviso, however, this option 

would allow the Department to use 

additional evidence on a case-by-case 

basis to determine whether the OMB 

designations—which do not track 

construction markets specifically—are 

too narrow for a given construction 

market. Under this option, the 

Department could consider other 

measures of construction labor market 

integration, including whether 

construction workers in general (or 

workers in specific construction trades) 

typically commute between or work in 

two bordering counties or in a cluster of 

counties. 

This third option also would bring 

with it some potential benefits and 

drawbacks. On the one hand, the ability 

to identify local construction labor 

markets would allow the Department to 

make pre-determined county groupings 

much like it does now. This would 

reduce somewhat the burden of the 

second option—of calculating a 

different county grouping for each 

individual county to account for the 

counties that border specifically that 

county. It would also explicitly 

articulate the limitation that the 

Department believes is inherent in the 

term ‘‘surrounding counties’’—that the 

grouping must be limited to a 

‘‘contiguous’’ group of counties, with 

limited exceptions. On the other hand, 

the case-by-case determination of a local 

‘‘construction’’ labor market (that might 


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be different from an OMB MSA) could 

also be burdensome on WHD. The 

definition, however, could allow such a 

case-by-case determination but not 

require it. Accordingly, if such case-bycase determinations become too 

burdensome, WHD could revert to the 

adoption of designations from OMB or 

some other externally-defined metric. 

Finally, the Department recognizes 

that even if it retains the metropolitanrural proviso, doing so does not bind 

WHD to the current practice of using 

OMB-designated county groupings and 

other procedures. Under the language of 

the current regulation, the Department 

retains the authority to make its own 

determinations regarding whether a 

county is ‘‘metropolitan’’ or ‘‘rural.’’ See 

29 CFR 1.7(b). The Department also 

retains certain flexibility for 

determining how to group counties at 

each level and is not limited to using 

the OMB designations. As noted above, 

the Department also believes that the 

plain text of § 1.7(b) does not 

necessarily limit it from combining 

metropolitan and rural data beyond the 

‘‘surrounding counties’’ group level. 

(2) Other Proposed Changes to § 1.7 

The Department is also considering 

other proposed changes to § 1.7. These 

include nonsubstantive changes to the 

wording of the paragraphs that clarify 

that the threshold for expansion in each 

one is insufficient ‘‘current wage data.’’ 

The existing regulation now defines 

‘‘current wage data’’ in § 1.7(a) as ‘‘data 

on wages paid on current projects or, 

where necessary, projects under 

construction no more than one year 

prior to the beginning of the survey or 

the request for a wage determination, as 

appropriate.’’ The Department seeks 

comment on whether this definition 

should be kept in its current format or 

amended to narrow or expand its scope. 

The Department is also considering 

whether to amend § 1.7(c) to better 

describe the process for expanding from 

the ‘‘surrounding county’’ level to 

consider data from an intermediary 

level (such as the current ‘‘supergroup’’ 

level) before relying on statewide data. 

For example, as the Department has 

included in the current proposed 

regulatory text, the Department could 

describe this second level of county 

groupings as a consideration of 

‘‘comparable counties or groups of 

counties in the State.’’ As with the third 

option discussed above for defining 

‘‘surrounding counties,’’ this 

‘‘comparable counties’’ language in 

§ 1.7(c) would allow the Department to 

continue to use the procedure described 

in Chesapeake Housing of combining 

various MSAs or various noncontiguous groups of rural counties to 

create ‘‘supergroups.’’ It would also 

allow a more nuanced analysis of 

comparable labor markets using 

construction market data specifically. 

As the foregoing discussion reflects, 

there is no perfect solution for 

identifying county groupings in § 1.7. 

Each possibility described above has 

potential benefits and drawbacks. In 

addition, the Department notes that the 

significance of this section in the wage 

determination process is also related to 

the level of participation by interested 

parties in WHD’s voluntary wage 

survey. If more interested parties 

participate in the wage survey, then 

there will be fewer counties without 

sufficient wage data for which the § 1.7 

expansion process becomes relevant. 

Absent sufficient survey information, 

however, WHD will need to continue to 

include a larger geographic scope to 

ensure that it effectuates the purposes of 

the DBA and Related Acts—to issue 

wage determinations to establish 

minimum wages on federally funded or 

assisted construction projects. The 

Department thus seeks comment on all 

aspects of amending the county 

grouping methodology of § 1.7— 

including administrative feasibility and 

the distinction between rural and 

metropolitan counties—to ensure that it 

has considered the relevant possibilities 

for amending or retaining the various 

elements of this methodology. 

viii. Section 1.8 Reconsideration by 

the Administrator 

The Department proposes revisions to 

§§ 1.8 and 5.13 to explicitly provide 

procedures for reconsideration by the 

Administrator of decisions, rulings, or 

interpretations made by an authorized 

representative of the Administrator. 

Parts 1 and 5 both define the term 

‘‘Administrator’’ to mean the WHD 

Administrator or an authorized 

representative of the Administrator. See 

29 CFR 1.2(c), 5.2(b). Accordingly, when 

parties seek rulings, interpretations, or 

decisions from the Administrator 

regarding the Davis-Bacon labor 

standards, it is often the practice of the 

Department to have such decisions 

made in the first instance by an 

authorized representative. After an 

authorized representative issues a 

decision, the party may request 

reconsideration by the Administrator. 

The decision typically provides a time 

frame in which to request 

reconsideration by the Administrator, 

often 30 days. To provide greater clarity 

and uniformity, the Department 

proposes to codify this practice and to 

clarify how and when reconsideration 

may be sought. 

First, the Department proposes to 

amend § 1.8, which concerns 

reconsideration by the Administrator of 

wage determinations and decisions 

regarding the application of wage 

determinations under part 1, to provide 

that if a decision for which 

reconsideration is sought was made by 

an authorized representative of the 

Administrator, the interested party 

seeking reconsideration may request 

further reconsideration by the 

Administrator of the Wage and Hour 

Division. The Department proposes that 

such requests must be submitted within 

30 days from the date the decision is 

issued, and that this time period may be 

extended for good cause at the 

Administrator’s discretion upon a 

request by the interested party. Second, 

the Department proposes to amend 

§ 5.13, which concerns rulings and 

interpretations under parts 1, 3, and 5, 

to similarly provide for the 

Administrator’s reconsideration of 

rulings and interpretations issued by an 

authorized representative. The 

Department proposes to apply the same 

procedures for such reconsideration 

requests as apply to reconsideration 

requests under § 1.8. The Department 

also proposes to divide §§ 1.8 and 5.13 

into paragraphs for clarity and 

readability, and to add email addresses 

for parties to submit requests for 

reconsideration or for rulings or 

interpretations, respectively. 

ix. Section 1.10 Severability 

The Department proposes to add a 

new § 1.10, titled ‘‘Severability.’’ The 

proposed severability provision 

explains that each provision is capable 

of operating independently from one 

another, and that if any provision of part 

1 is held to be invalid or unenforceable 

by its terms, or as applied to any person 

or circumstance, or stayed pending 

further agency action, the Department 

intends that the remaining provisions 

remain in effect. 

x. References to Website for Accessing 

Wage Determinations 

The Department proposes to revise 

§§ 1.2, 1.5, and 1.6 to reflect, in more 

general terms, that wage determinations 

are maintained online without a 

reference to a specific website. 

The current regulations reference 

Wage Determinations OnLine (WDOL), 

previously available at https://

www.wdol.gov, which was established 

following the enactment of the EGovernment Act of 2002, Public Law 

107–347, 116 Stat. 2899 (2002). 

WDOL.gov served as the source for 

Federal contracting agencies to use 

when obtaining wage determinations. 


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72WDOL.gov Decommissioning Approved by IAE 

Governance: System Set to Transition to 

beta.SAM.gov on June 14, 2019, GSA Interact (May 

21, 2019), https://interact.gsa.gov/blog/wdolgovdecommissioning-approved-iae-governance-systemset-transition-betasamgov-june-14-2019. 

73About This Site, System for Award 

Management, https://sam.gov/content/about/thissite (last visited Nov. 19, 2021). 

See 70 FR 50887 (Aug. 26, 2005). 

WDOL.gov was decommissioned on 

June 14, 2019, and the System for 

Award Management (SAM.gov) became 

the authoritative and single location for 

obtaining DBA general wage 

determinations.72 The transition of wage 

determinations onto SAM.gov was part 

of the Integrated Award Environment, a 

government-wide initiative 

administered by GSA to manage and 

integrate multiple online systems used 

for awarding and administering Federal 

financial assistance and contracts.73

Currently, wage determinations can 

be found at https://sam.gov/content/ 

wage-determinations. In order to avoid 

outdated website domain references in 

the regulations should the domain name 

change in the future, the Department 

proposes to use the more general term 

‘‘Department of Labor-approved 

website,’’ which would refer to any 

official government website the 

Department approves for posting wage 

determinations. 

xi. Appendices A and B to Part 1 

The Department proposes to remove 

Appendices A and B from 29 CFR part 

1 and make conforming technical edits 

to sections that reference those 

provisions. Appendix A lists the DavisBacon Act and the Related Acts, in other 

words, the statutes related to the DavisBacon Act that require the payment of 

wages at rates predetermined by the 

Secretary of Labor pursuant to the 

Davis-Bacon Act, and Appendix B lists 

regional offices of the Wage and Hour 

Division. The Department proposes to 

rescind these appendices as they are no 

longer current, and updated information 

contained in both appendices can be 

found on WHD’s website at https://

www.dol.gov/agencies/whd/. 

Specifically, a listing of statutes 

requiring the payment of wages at rates 

predetermined by the Secretary of Labor 

under the Davis-Bacon Act is currently 

at https://www.dol.gov/agencies/whd/ 

government-contracts, and a listing of 

WHD regional offices is currently found 

at https://www.dol.gov/agencies/whd/ 

contact/local-offices. 

xii. Frequently Conformed Rates 

The Department also proposes to 

revise §§ 1.3 and 5.5 to provide that, 

where WHD has received insufficient 

data through its wage survey process to 

publish a prevailing wage for a 

classification for which conformance 

requests are regularly submitted, WHD 

nonetheless may list the classification 

and wage and fringe benefit rates for the 

classification on the wage 

determination, provided that the three 

basic criteria for conformance of a 

classification and wage and fringe 

benefit rate have been satisfied: (1) The 

work performed by the classification is 

not performed by a classification in the 

wage determination; (2) the 

classification is used in the area by the 

construction industry; and (3) the wage 

rate for the classification bears a 

reasonable relationship to the wage rates 

contained in the wage determination. 

The Department specifically proposes 

that the wage and fringe benefit rates for 

these classifications be determined in 

accordance with the ‘‘reasonable 

relationship’’ criterion that is currently 

used in conforming missing 

classifications pursuant to current 29 

CFR 5.5(a)(1)(ii)(A). The Department 

welcomes comments regarding all 

aspects of this proposal, which is 

described more fully below. 

WHD determines DBA prevailing 

wage rates based on wage survey data 

that responding contractors and other 

interested parties voluntarily provide. 

See 29 CFR 1.1 through 1.7. WHD 

sometimes receives robust participation 

in its wage surveys, thereby enabling it 

to publish wage determinations that list 

prevailing wage rates for numerous 

construction classifications. However, 

stakeholder participation can be more 

limited, particularly in surveys for 

residential construction or in rural 

areas, and WHD therefore does not 

always receive sufficient wage data to 

publish prevailing wage rates for 

various classifications generally 

necessary for various types of 

construction. 

Whenever a wage determination lacks 

a classification of work that is necessary 

for performance of DBRA-covered 

construction, the missing classification 

and an appropriate wage rate must be 

added to the wage determination on a 

contract-specific basis through the 

conformance process. Conformance is 

the expedited process by which a 

classification and wage and fringe 

benefit rate are added to an existing 

wage determination applicable to a 

specific DBRA-covered contract. See 29 

CFR 5.5(a)(1)(ii)(A). When, for example, 

a wage determination lists only certain 

skilled classifications such as carpenter, 

plumber, and electrician (because they 

are the skilled classifications for which 

WHD received sufficient wage data 

through its survey process), the 

conformance process is used to provide 

contractors with minimum wage rates 

for other necessary classifications (such 

as, in this example, painters and 

bricklayers). 

‘‘By design, the Davis-Bacon 

conformance process is an expedited 

proceeding created to ‘fill in the gaps’ ’’ 

in an existing wage determination, with 

the ‘‘narrow goal’’ of establishing an 

appropriate wage rate for a classification 

needed for performance of the contract. 

Am. Bldg. Automation, Inc., ARB No. 

00–067, 2001 WL 328123, at *3 (Mar. 

30, 2001). As a general matter, WHD is 

given ‘‘broad discretion’’ in setting a 

conformed wage rate, and the 

Administrator’s decisions ‘‘will be 

reversed only if inconsistent with the 

regulations, or if they are unreasonable 

in some sense[.]’’ Millwright Loc. 1755, 

ARB No. 98–015, 2000 WL 670307, at *6 

(May 11, 2000) (internal quotations and 

citations omitted). See, e.g., Constr. 

Terrebonne Par. Juvenile Justice 

Complex, ARB No. 17–0056, 2020 WL 

5902440, at *2–4 (Sept. 4, 2020) 

(reaffirming the Administrator’s ‘‘broad 

discretion’’ in determining appropriate 

conformed wage rates); Courtland 

Constr. Corp., ARB No. 17–074, 2019 

WL 5089598, at *2 (Sept. 30, 2019) 

(same). 

The regulations require the following 

criteria be met for a proposed 

classification and wage rate to be 

conformed to a wage determination: (1) 

The work to be performed by the 

requested classification is not performed 

by a classification in the wage 

determination; (2) the classification is 

used in the area by the construction 

industry; and (3) the proposed wage 

rate, including any bona fide fringe 

benefits, bears a reasonable relationship 

to the wage rates in the wage 

determination. See 29 CFR 

5.5(a)(1)(ii)(A). 

Pursuant to the first conformance 

criterion, WHD may approve a 

conformance request only where the 

work of the proposed classification is 

not performed by any classification on 

the wage determination. WHD need not 

‘‘determine that a classification in the 

wage determination actually is the 

prevailing classification for the tasks in 

question, only that there is evidence to 

establish that the classification actually 

performs the disputed tasks in the 

locality.’’ Am. Bldg. Automation, 2001 

WL 328123, at *4. Even if workers 

perform only a subset of the duties of a 

classification, they are still performing 

work that is covered by the 

classification, and conformance of a 

new classification thus would be 

inappropriate. See, e.g., Fry Bros. Corp., 

WAB No. 76–06, 1977 WL 24823, at *6 


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74As explained in WHD’s Prevailing Wage 

Resource Book, WHD has identified several ‘‘key 

classifications’’ normally necessary for one of the 

four types of construction (building, highway, 

heavy, and residential) for which WHD publishes 

general wage determinations. Davis-Bacon Surveys 

at 6. The Prevailing Wage Resource Book contains 

a table that lists the key classifications for each type 

of construction. The table, which may be updated 

periodically as warranted, currently identifies the 

key classifications for building construction as heat 

and frost insulators, bricklayers, boilermakers, 

carpenters, cement masons, electricians, iron 

workers, laborers (common), painters, pipefitters, 

plumbers, power equipment operators (operating 

engineers), roofers, sheet metal workers, tile setters, 

and truck drivers; the key classifications for 

residential construction as bricklayers, carpenters, 

cement masons, electricians, iron workers, laborers 

(common), painters, plumbers, power equipment 

operators (operating engineers), roofers, sheet metal 

workers, and truck drivers; and the key 

classifications for heavy and highway construction 

as carpenters, cement masons, electricians, iron 

workers, laborers (common), painters, power 

equipment operators (operating engineers), and 

truck drivers. Id. 

(June 14, 1977). In instances where the 

first and second conformance criteria 

are satisfied and it has been determined 

that the requested classification should 

be added to the contract wage 

determination, WHD will address 

whether the third criterion has also been 

satisfied, i.e., whether ‘‘[t]he proposed 

wage rate, including any bona fide 

fringe benefits, bears a reasonable 

relationship to the wage rates’’ in the 

wage determination. 

WHD typically receives thousands of 

conformance requests each year 

(sometimes over 10,000 in a given year). 

In some instances, including instances 

where contractors are unaware that their 

work falls within the scope of work 

performed by an established 

classification on the wage 

determination, WHD receives 

conformance requests where 

conformance plainly is not appropriate 

because the wage determination already 

contains a classification that performs 

the work of the proposed classification. 

In other instances, however, 

conformance is necessary because the 

applicable wage determination does not 

contain all of the classifications that are 

necessary to complete the project. The 

considerable need for conformances due 

to the absence of necessary 

classifications on wage determinations 

reduces certainty for prospective 

contractors in the bidding process, who 

may be unsure of what wage rate must 

be paid to laborers and mechanics 

performing work on the project, and 

taxes WHD’s resources. If such 

uncertainty causes contractors to 

underbid on construction projects and 

subsequently to pay subminimum wages 

to workers, missing classifications on 

wage determinations can result in the 

underpayment of wages to workers. 

To address this issue, the Department 

proposes revising 29 CFR 1.3 and 

5.5(a)(1) to expressly authorize WHD to 

list classifications and corresponding 

wage and fringe benefit rates on wage 

determinations even when WHD has 

received insufficient data through its 

wage survey process. Under this 

proposal, for key classifications or other 

classifications for which conformance 

requests are regularly submitted,74 the 

Administrator would be authorized to 

list the classification on the wage 

determination along with wage and 

fringe benefit rates that bear a 

‘‘reasonable relationship’’ to the 

prevailing wage and fringe benefit rates 

contained in the wage determination, 

using essentially the same criteria under 

which such classifications and rates are 

currently conformed by WHD pursuant 

to current § 5.5(a)(1)(ii)(A)(3). In other 

words, for a classification for which 

conformance requests are regularly 

submitted, and for which WHD received 

insufficient data through its wage 

survey process, WHD would be 

expressly authorized to essentially ‘‘preapprove’’ certain conformed 

classifications and wage rates, thereby 

providing contracting agencies, 

contractors and workers with advance 

notice of the minimum wage and fringe 

benefits required to be paid for work 

within those classifications. WHD 

would list such classifications and wage 

and fringe benefit rates on wage 

determinations where: (1) The work 

performed by the classification is not 

performed by a classification in the 

wage determination for which a 

prevailing wage rate has been 

determined; (2) the classification is used 

in the area by the construction industry; 

and (3) the wage rate for the 

classification bears a reasonable 

relationship to the prevailing wage rates 

contained in the wage determination. 

The Administrator would establish 

wage rates for such classifications in 

accordance with proposed 

§ 5.5(a)(1)(iii)(A)(3). Contractors would 

be required to pay workers performing 

work within such classifications at no 

less than the rates listed on the wage 

determination. Such classifications and 

rates on a wage determination would be 

designated with a distinct term, 

abbreviation, or description to denote 

that they essentially reflect preapproved conformed rates rather than 

prevailing wage and fringe benefit rates 

that have been determined through the 

Davis-Bacon wage survey process. 

These rates would apply to the 

applicable classification without the 

need to submit a conformance request in 

accordance with current 

§ 5.5(a)(1)(ii)(A)–(C). However, if a 

contracting agency, contractor, union, or 

other interested party has questions or 

concerns about how particular work 

should be classified—and, specifically, 

whether the work at issue is performed 

by a particular classification included 

on a wage determination (including 

classifications listed pursuant to this 

proposal) as a matter of local area 

practice or otherwise, the contracting 

agency should submit a conformance 

request in accordance with § 5.5(a)(1) or 

seek guidance from WHD under 29 CFR 

5.13. Moreover, under this proposal, 

contracting agencies would still be 

required to submit conformance 

requests for any needed classifications 

not listed on the wage determination, 

which would be approved, modified or 

disapproved as warranted after award of 

the contract, as required by the 

regulatory provisions applicable to 

conformance requests. 

2. 29 CFR Part 3 

‘‘Anti-kickback’’ and payroll 

submission regulations under section 2 

of the Act of June 13, 1934, as amended, 

40 U.S.C. 3145, popularly known as the 

Copeland Act, are set forth in 29 CFR 

part 3. This part details the obligations 

of contractors and subcontractors 

relative to the weekly submission of 

statements regarding the wages paid on 

work covered by the Davis-Bacon labor 

standards; sets forth the circumstances 

and procedures governing the making of 

payroll deductions from the wages of 

those employed on such work; and 

delineates the methods of payment 

permissible on such work. 

i. Corresponding Edits to Part 3 

The Department proposes multiple 

revisions to various sections in part 3 to 

update the language and ensure that 

terms are used in a manner consistent 

with the terminology used in 29 CFR 

parts 1 and 5, to update websites and 

contact information, and to make other 

similar, non-substantive changes. The 

Department also proposes conforming 

edits to part 3 to reflect proposed 

changes to part 5, such as revising § 3.2 

to clarify existing definitions or to add 

new defined terms also found in parts 

1 and 5. The Department welcomes 

comment on whether it should further 

consolidate and/or harmonize the 

definitions in §§ 1.2, 3.2, and 5.2 in a 

final rule, such as by placing all 

definitions in a single regulatory section 

applicable to all three parts. 

The Department further proposes to 

change certain requirements associated 

with the submission of certified 

payrolls. To the extent that such 


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75The 1973 Home Rule Act, Public Law 93–198, 

transferred from the President to the District of 

Columbia the authority to organize and reorganize 

specific governmental functions of the District of 

Columbia, but does not contain any language 

removing the District of Columbia from the 

Department’s authority to prescribe DBA 

regulations pursuant to Reorganization Plan No. 14 

of 1950. 

changes are substantive, the reasons for 

these proposed changes are provided in 

the discussions of proposed §§ 5.2 and 

5.5. The Department also proposes to 

remove § 3.5(e) regarding deductions for 

the purchase of United States Defense 

Stamps and Bonds, as the Defense 

Stamps and Bonds are no longer 

available for purchase. Similarly, the 

Department proposes to simplify the 

language regarding deductions for 

charitable donations at § 3.5(g) by 

eliminating references to specific 

charitable organizations and instead 

permitting voluntary deductions to 

charitable organizations as defined by 

26 U.S.C. 501(c)(3). 

Finally, the Department proposes to 

add language to § 3.11 explaining that 

the requirements set forth in part 3 are 

considered to be effective as a matter of 

law, whether or not these requirements 

are physically incorporated into a 

covered contract, and cross-referencing 

the proposed new language discussing 

incorporation by operation of law at 

§ 5.5(e), discussed further below. 

3. 29 CFR Part 5 

i. Section 5.1 Purpose and Scope 

The Department proposes minor 

technical revisions to § 5.1 to update 

statutory references, and further 

proposes to revise § 5.1 by deleting the 

listing of laws requiring Davis-Bacon 

labor standards provisions, given that 

any such list inevitably becomes out-ofdate due to statutory revisions and the 

enactment of new Related Acts. In lieu 

of this listing in the regulation, the 

Department proposes to add new subparagraph (a)(1) to reference the WHD 

website (https://www.dol.gov/agencies/

whd/government-contracts) on which a 

listing of laws requiring Davis-Bacon 

labor standards provisions is currently 

found and regularly updated. 

ii. Section 5.2 Definitions 

(A) Agency, Agency Head, Contracting 

Officer, Secretary, and Davis-Bacon 

Labor Standards 

The Department proposes to revise 

the definitions of ‘‘agency head’’ and 

‘‘contracting officer’’ and to add a 

definition of ‘‘agency’’ to reflect more 

clearly that State and local agencies 

enter into contracts for projects that are 

subject to the Davis-Bacon labor 

standards and that they allocate Federal 

assistance they have received under a 

Davis-Bacon Related Act to subrecipients. These proposed definitional 

changes also are intended to reflect that, 

for some funding programs, the 

responsible Federal agency has 

delegated administrative and 

enforcement authority to states or local 

agencies. When the current regulations 

refer to the obligations or authority of 

agencies, agency heads, and contracting 

officers, they are referring to Federal 

agencies and Federal contracting 

officers. However, as noted above, State 

or local agencies and their agency heads 

and contracting officers exercise similar 

authority in the administration and 

enforcement of Davis-Bacon labor 

standards. Because the existing 

definitions define ‘‘agency head’’ and 

‘‘contracting officer’’ as particular 

‘‘Federal’’ officials or persons 

authorized to act on their behalf, which 

does not clearly reflect the role of State 

and local agencies in effectuating DavisBacon requirements, including by 

entering into contracts for projects 

subject to the Davis-Bacon labor 

standards and inserting the Davis-Bacon 

contract clauses in such contracts, the 

Department proposes to revise these 

definitions to reflect the role of State 

and local agencies. The proposed 

revisions also enable the regulations to 

specify the obligations and authority 

held by both State or local and Federal 

agencies, as opposed to obligations that 

are specific to one or the other. 

The Department also proposes to 

define the term ‘‘Federal agency’’ as a 

sub-definition of ‘‘agency’’ to 

distinguish those situations where the 

regulations refer specifically to an 

obligation or authority that is limited 

solely to a Federal agency that enters 

into contracts for projects subject to the 

Davis-Bacon labor standards or allocates 

Federal assistance under a Davis-Bacon 

Related Act. 

The Department also proposes to add 

the District of Columbia to the 

definition of ‘‘Federal agency.’’ The 

DBA states in part that it applies to 

every contract in excess of $2,000, to 

which the Federal Government ‘‘or the 

District of Columbia’’ is a party. See 40 

U.S.C. 3142(a). As described above, 

Reorganization Plan No. 14 of 1950 

authorizes the Department to prescribe 

regulations to ensure that the Act is 

implemented in a consistent manner by 

all agencies subject to the Act. See 5 

U.S.C. app 1. Accordingly, the proposed 

change to the definition of ‘‘Federal 

agency’’ in § 5.2 clarifies that the 

District of Columbia is subject to the 

DBA and the regulations implemented 

by the Department pursuant to 

Reorganization Plan No. 14 of 1950.75

The proposed change is also consistent 

with the definition of ‘‘Federal agency’’ 

in part 3 of this title, which specifically 

includes the District of Columbia. See 

29 CFR 3.2(g). The proposed change 

simply reflects the DBA’s applicability 

to the District of Columbia and is not 

intended to reflect a broader or more 

general characterization of the District 

as a Federal Government entity. 

The Department also proposes a 

change to the definition of ‘‘Secretary’’ 

to delete a reference to the Under 

Secretary for Employment Standards; as 

noted above, the Employment Standards 

Administration was eliminated in a 

reorganization in 2009 and its 

authorities and responsibilities were 

devolved into its constituent 

components, including WHD. 

Lastly, the Department proposes a 

minor technical edit to the definition of 

‘‘Davis-Bacon labor standards’’ to reflect 

proposed changes to § 5.1, discussed 

above. 

(B) Building or Work 

(1) Energy Infrastructure and Related 

Activities 

The Department proposes to 

modernize the definition of the terms 

‘‘building or work’’ by including solar 

panels, wind turbines, broadband 

installation, and installation of electric 

car chargers to the non-exclusive list of 

construction activities encompassed by 

the definition. These proposed changes 

to the definition are intended to reflect 

the significance of energy infrastructure 

and related projects to modern-day 

construction activities subject to the 

Davis-Bacon and Related Acts, as well 

as to illustrate the types of energyinfrastructure and related activities that 

are encompassed by the definition of 

‘‘building or work.’’ 

(2) Coverage of a Portion of a Building 

or Work 

The Department proposes to add 

language to the definitions of ‘‘building 

or work’’ and ‘‘public building or public 

work’’ to clarify that these definitions 

can be met even when the construction 

activity involves only a portion of an 

overall building, structure, or 

improvement. The definition of 

‘‘building or work’’ already states that 

the terms ‘‘building’’ and ‘‘work’’ 

‘‘generally include construction activity 

as distinguished from manufacturing, 

furnishing of materials, or servicing and 

maintenance work,’’ and includes 

‘‘without limitation, buildings, 

structures, and improvements of all 

types.’’ 29 CFR 5.2(i). In addition, the 


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regulation already provides several 

examples of construction activity 

included within the term ‘‘building or 

work’’ that do not constitute an entire 

building, structure, or improvement, 

such as ‘‘dredging, shoring, . . . 

scaffolding, drilling, blasting, 

excavating, clearing, and landscaping.’’ 

Id. Moreover, the current regulations 

define the term ‘‘construction, 

prosecution, completion, or repair’’ to 

mean ‘‘all types of work done on a 

particular building or work at the site 

thereof . . . including, without 

limitation . . . [a]ltering, remodeling, 

installation . . . ; [p]ainting and 

decorating.’’ Id. § 5.2(j). 

However, to further make plain that 

‘‘building or work’’ includes not only 

construction activity involving an entire 

building, structure, or improvement, but 

also construction activity involving a 

portion of a building, structure, or 

improvement, or the installation of 

equipment or components into a 

building, structure, or improvement, the 

Department proposes to add a sentence 

to this definition stating that ‘‘[t]he term 

building or work also includes a portion 

of a building or work, or the installation 

(where appropriate) of equipment or 

components into a building or work.’’ 

The Department also proposes to 

include additional language in the 

definition of ‘‘public building or public 

work’’ to clarify that a ‘‘public building’’ 

or ‘‘public work’’ includes the 

construction, prosecution, completion, 

or repair of a portion of a building or 

work that is carried on directly by 

authority of or with funds of a Federal 

agency to serve the interest of the 

general public, even where construction 

of the entire building or work does not 

fit within this definition. 

These proposed revisions are 

consistent with the Davis-Bacon Act. 

The concepts of alteration or repair 

presuppose that only a portion of a 

building, structure, or improvement will 

be affected. By specifically including 

the alteration or repair of public 

buildings or works within its scope of 

coverage, the Davis-Bacon Act itself 

necessitates that construction activity 

involving merely a portion of a building 

or work may be subject to coverage. 

These proposed revisions are also 

consistent with the Department’s 

longstanding policy that a ‘‘public 

building’’ or ‘‘public work’’ includes 

construction activity involving a portion 

of a building or work, or the installation 

of equipment or components into a 

building or work when the other 

requirements for Davis-Bacon coverage 

are satisfied. See, e.g., AAM 52 (July 9, 

1963) (holding that the upgrade of 

communications systems at a military 

base, including the installation of 

improved cabling, constituted the 

construction, alteration or repair of a 

public work); Letter from Sylvester L. 

Green, Director, Division of Contract 

Standards Operations, to Robert Olsen, 

Bureau of Reclamation (Mar. 18, 1985) 

(finding that the removal and 

replacement of stator cores in a 

hydroelectric generator was covered 

under the Davis-Bacon Act as the 

alteration or repair of a public work); 

Letter from Samuel D. Walker, Acting 

Administrator, to Edward Murphy (Aug. 

29, 1990) (stating that ‘‘[t]he Department 

has ruled on numerous occasions that 

repair or alteration of boilers, 

generators, furnaces, etc. constitutes 

repair or alteration of a ‘public work’ ’’); 

Letter from Nancy Leppink, Deputy 

Administrator, to Armin J. Moeller (Dec. 

12, 2012) (finding that the installation of 

equipment such as generators or 

turbines into a hydroelectric plant is 

considered to be the improvement or 

alteration of a public work). 

Similarly, the proposed revisions are 

consistent with the Department’s 

longstanding position that a ‘‘public 

building’’ or ‘‘public work’’ may include 

structures, buildings, or improvements 

that will not be owned by the Federal 

government when construction is 

completed, so long as the construction 

is carried on directly by authority of or 

with funds of a Federal agency to serve 

the interest of the general public. 

Accordingly, the Department has long 

held that the Davis-Bacon labor 

standards provisions may apply to 

construction undertaken when the 

government is merely going to have the 

use of the building or work, such as in 

lease-construction contracts, depending 

upon the facts and circumstances 

surrounding the contract. See 

Reconsideration of Applicability of the 

Davis-Bacon Act to the Veteran 

Admin.’s Lease of Med. Facilities, 18 

Op. O.L.C. 109, 119 n.10 (May 23, 1994) 

(‘‘1994 OLC Memorandum’’) (‘‘[T]he 

determination whether a leaseconstruction contract calls for 

construction of a public building or 

public work likely will depend on the 

details of the particular arrangement.’’); 

FOH 15b07. In AAM 176 (June 22, 

1994), WHD provided guidance to the 

contracting community regarding the 

DBA’s application to lease-construction 

contracts, and specifically advised that 

the following non-exclusive list of 

factors from the 1994 OLC 

Memorandum should be considered in 

determining the scope of DBA coverage: 

(1) The length of the lease; (2) the extent 

of Government involvement in the 

construction project (such as whether 

the building is being built to 

Government requirements and whether 

the Government has the right to inspect 

the progress of the work); (3) the extent 

to which the construction will be used 

for private rather than public purposes; 

(4) the extent to which the costs of 

construction will be fully paid for by the 

lease payments; and (5) whether the 

contract is written as a lease solely to 

evade the requirements of the DBA. 

In sum, as noted above, a building or 

work includes construction activity 

involving only a portion of a building, 

structure, or improvement. As also 

noted above, a public building or public 

work is not limited to buildings or 

works that will be owned by the Federal 

Government, but may include buildings 

or works that serve the general public 

interest, including spaces to be leased or 

used by the Federal Government. 

Accordingly, it necessarily follows that 

a contract for the construction of a 

portion of a building, structure, or 

improvement may be a covered contract 

for construction of a ‘‘public building’’ 

or ‘‘public work’’ where the other 

requirements for coverage are met, even 

if the Federal Government is not going 

to own, lease, use, or otherwise be 

involved with the construction of the 

remaining portions of the building or 

work. For example, as WHD has 

repeatedly asserted in connection with 

one contracting agency’s leaseconstruction contracts, where the 

Federal government enters into a lease 

for a portion of an otherwise private 

building—and, as a condition of the 

lease, requires and pays for specific 

tenant improvements requiring 

alterations and repairs to that portion to 

prepare the space for government 

occupancy in accordance with 

government specifications—DavisBacon labor standards may apply to the 

tenant improvements or other specific 

construction activity called for by such 

a contract. In such circumstances, the 

factors discussed in AAM 176 would 

still need to be considered to determine 

if coverage is appropriate, but the 

factors would be applied specifically 

with reference to the leased portion of 

the building and the construction 

required by the lease. 

Finally, these proposed revisions 

would further the remedial purpose of 

the Davis-Bacon Act by ensuring that 

the Act’s protections apply to contracts 

for construction activity for which the 

government is responsible. Walsh v. 

Schlecht, 429 U.S. 401, 411 (1977) 

(reiterating that the DBA ‘‘was not 

enacted to benefit contractors, but rather 

to protect their employees from 

substandard earnings by fixing a floor 

under wages on Government projects’’) 


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76The Department notes that under Federal 

contracts and subcontracts, demolition contracts 

that do not fall within the DBA’s scope are instead 

service contracts covered by the SCA, and the 

Department uses DBA prevailing wage rates as a 

basis for the SCA wage determination. See AAM 

190. However, federally-funded demolition work 

carried out by State or local governments that does 

not meet the criteria for coverage under a DavisBacon Related Act would generally not be subject 

to Federal prevailing wage protections. 

(citation and internal quotation marks 

omitted); 1994 OLC Memorandum, 18 

Op. O.L.C. at 121 (‘‘[W]here the 

government is financially responsible 

for construction costs, the purposes of 

the Davis-Bacon Act may be 

implicated.’’). If the Davis-Bacon Act 

were only applied in situations where 

the Federal government is involved in 

the construction of the entire (or even 

the majority of the) building or work, 

coverage of contracts would be 

dependent on the size of the building or 

work, even if two otherwise equivalent 

contracts involved the same square 

footage and the government was paying 

for the same amount of construction. 

Such an application of coverage would 

undermine the statute’s remedial 

purpose by permitting publicly funded 

construction contracts for millions of 

dollars of construction activity to evade 

coverage merely based on the size of the 

overall structure or building. 

Accordingly, and as noted above, the 

Department proposes revisions to the 

definitions of ‘‘building or work’’ and 

‘‘public building or public work’’ that 

serve to clarify rather than change 

existing coverage requirements. 

However, the Department understands 

that in the absence of such clarity under 

the existing regulations, contracting 

agencies have differed in their 

implementation of Davis-Bacon labor 

standards where construction activity 

involves only a portion of a building, 

structure, or improvement, particularly 

in the context of lease-construction 

contracts. Thus, as a practical matter, 

the proposed revisions will result in 

broader application of Davis-Bacon 

labor standards. The Department 

therefore invites comment on the 

benefits and costs of these proposed 

revisions to private business owners, 

workers, and the Federal government, 

particularly in the context of leasing. 

(C) Construction, Prosecution, 

Completion, or Repair 

The Department also proposes to add 

a new sub-definition to the term 

‘‘construction, prosecution, completion, 

or repair’’ in § 5.2, to better clarify when 

demolition and similar activities are 

covered by the Davis-Bacon labor 

standards. 

In general, the Davis-Bacon labor 

standards apply to contracts ‘‘for 

construction, alteration or repair . . . of 

public buildings and public works[.]’’ 

40 U.S.C. 3142(a). Early in the DBA’s 

history, the Attorney General examined 

whether demolition fit within these 

terms, and concluded that ‘‘[t]he statute 

is restricted by its terms to 

‘construction, alteration, and/or 

repair,’ ’’ and that this language ‘‘does 

not include the demolition of existing 

structures’’ alone. 38 Op. Atty. Gen. 229 

(1935). The Attorney General 

‘‘reserve[d] . . . the question . . . of 

[the coverage of] a razing or clearing 

operation provided for in a building 

contract, to be performed by the 

contractor as an incident of the building 

project.’’ Id. Consistent with the 

Attorney General’s opinion, the 

Department has long maintained that 

standalone demolition work is generally 

not covered by the Davis-Bacon labor 

standards. See AAM 190 (Aug. 29, 

1998); WHD Opinion Letter SCA–78 

(Nov. 27, 1991); WHD Opinion Letter 

DBRA–40 (Jan. 24, 1986); WHD Opinion 

Letter DBRA–48 (Apr. 13, 1973); AAM 

54 (July 29, 1963); FOH 15d03(a). 

However, the Department has 

understood the Davis-Bacon labor 

standards to cover demolition and 

removal under certain circumstances. 

First, demolition and removal activities 

are covered by Davis-Bacon labor 

standards when such activities 

themselves constitute construction, 

alteration, or repair of a public building 

or work. Thus, for example, the 

Department has explained that removal 

of asbestos or paint from a facility that 

will not be demolished—even if 

subsequent reinsulating or repainting is 

not considered—is covered by DavisBacon because the asbestos or paint 

removal is an ‘‘alteration’’ of the facility. 

See AAM 153 (Aug. 6, 1990). Likewise, 

the Department has explained that 

Davis-Bacon can apply to certain 

hazardous waste removal contracts, 

because ‘‘substantial excavation of 

contaminated soils followed by 

restoration of the environment’’ is 

‘‘construction work’’ under the DBA and 

because the term ‘‘landscaping’’ as used 

in the DBA regulations includes 

‘‘elaborate landscaping activities such as 

substantial earth moving and the 

rearrangement or reclamation of the 

terrain that, standing alone, are properly 

characterized as the construction, 

restoration, or repair of the a public 

work.’’ AAM 155 (Mar. 25, 1991); see 

also AAM 190 (noting that ‘‘hazardous 

waste removal contracts that involve 

substantial earth moving to remove 

contaminated soil and recontour the 

surface’’ can be considered DBAcovered construction activities) 

Second, the Department has 

consistently maintained that if future 

construction that will be subject to the 

Davis-Bacon labor standards is 

contemplated on a demolition site— 

either because the demolition is part of 

a contract for such construction or 

because such construction is 

contemplated as part of a future 

contract, then the demolition of the 

previously-existing structure is 

considered part of the construction of 

the subsequent building or work and 

therefore within the scope of the DavisBacon labor standards. See AAM 190. 

This position is also articulated in the 

Department’s SCA regulations at 29 CFR 

4.116(b). Likewise, the Department has 

explained that certain activities under 

hazardous waste removal and 

remediation contracts, including ‘‘the 

dismantling or demolition of buildings, 

ground improvements and other real 

property structures and . . . the 

removal of such structures or portions of 

them’’ are covered by Davis-Bacon labor 

standards ‘‘if this work will result in the 

construction, alteration, or repair of a 

public building or public work at that 

location.’’ AAM 187 (Nov. 18, 1996), 

attachment: Superfund Guidance, Davis 

Bacon Act/Service Contract Act and 

Related Bonding, Jan. 1992) (emphasis 

in original). 

While the Department has addressed 

these distinctions to a degree in the SCA 

regulations and in subregulatory 

guidance, the Department believes that 

clear standards for the coverage of 

demolition and removal and related 

activities in the DBA regulations will 

assist agencies, contractors, workers, 

and other stakeholders in identifying 

whether contracts for demolition are 

within the scope of the DBA. This, in 

turn, would ensure that the correct 

contract provisions and wage 

determinations are incorporated into the 

contract, thereby providing contractors 

with the correct wage determinations 

prior to bidding and requiring the 

payment of Davis-Bacon prevailing 

wages where appropriate.76

Accordingly, the Department proposes 

to add a new paragraph (2)(v) to the 

definition of ‘‘construction, prosecution, 

completion, or repair’’ to assist agencies, 

contractors, workers, and other 

stakeholders in identifying when 

demolition and related activities fall 

within the scope of the DBA. 

Specifically, the Department proposes 

to clarify that demolition work is 

covered under any of three 

circumstances: (1) Where the demolition 

and/or removal activities themselves 

constitute construction, alteration, and/ 

or repair of an existing public building 

or work; (2) where subsequent 


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77This third option accounts for Related Acts 

whose broader language may permit greater 

coverage of demolition work. 

construction covered in whole or in part 

by the Davis-Bacon labor standards is 

planned or contemplated at the site of 

the demolition or removal, either as part 

of the same contract or as part of a 

future contract; or (3) where otherwise 

required by statute.77

While determining whether 

demolition is performed in 

contemplation of a future construction 

project is a fact-specific question, the 

Department also proposes a nonexclusive list of factors that can inform 

this determination. Although the 

inclusion of demolition activities in the 

scope of a contract for the subsequent 

construction of a public building or 

work is sufficient to warrant DavisBacon coverage, such a condition is not 

a necessary one. Other factors that may 

be relevant include the existence of 

engineering or architectural plans or 

surveys; the allocation of, or an 

application for, Federal funds; contract 

negotiations or bid solicitations; the 

stated intent of the relevant government 

officials; the disposition of the site after 

demolition (e.g., whether it is to be 

sealed and abandoned or left in a State 

that is prepared for future construction); 

and other factors. Based on these 

guidelines, Davis-Bacon coverage may 

apply, for example, to the removal and 

disposal of contaminated soil in 

preparation for construction of a 

building, or the demolition of a parking 

lot to prepare the site for a future public 

park. In contrast, Davis-Bacon likely 

would not apply to the demolition of an 

abandoned, dilapidated, or condemned 

building to eliminate it as a public 

hazard, reduce likelihood of squatters or 

trespassers, or to make the land more 

desirable for sale to private parties for 

purely private construction. 

(D) Contract, Contractor, Prime 

Contractor, and Subcontractor 

The Department proposes nonsubstantive revisions to the definition of 

‘‘contract’’ and also proposes new 

definitions in § 5.2 for the terms 

‘‘contractor,’’ ‘‘subcontractor’’ and 

‘‘prime contractor.’’ These definitions 

apply to 29 CFR part 5, including the 

DBRA contract clauses in § 5.5(a) and 

(b) of this part. 

Neither the DBA nor CWHSSA 

defines the terms ‘‘contract,’’ 

‘‘contractor,’’ ‘‘prime contractor,’’ or 

‘‘subcontractor.’’ The language of the 

Davis-Bacon and Related Acts, however, 

makes it clear that Congress intended 

the prevailing wage and overtime 

requirements to apply broadly to both 

prime contracts executed directly with 

Federal agencies as well as any 

subcontracts through which the prime 

contractors carry out the work on the 

prime contract. See 40 U.S.C. 3142(c); 

40 U.S.C. 3702(b), (d). Thus, the 

Department’s existing regulations define 

the term ‘‘contract’’ as including ‘‘any 

prime contract . . . and any subcontract 

of any tier thereunder.’’ 29 CFR 5.2(h). 

As indicated by the reference in the 

existing regulations to the laws listed in 

§ 5.1, the term also may include the 

contracts between Federal, State or local 

government entities administering 

Federal assistance and the direct 

recipients or beneficiaries of that 

assistance, where such assistance is 

covered by one of the Related Acts—as 

well as the construction contracts and 

subcontracts of any tier financed by or 

facilitated by such a contract for 

assistance. 

In other Federal contractor labor 

standards regulations, the Department 

has sometimes included more detailed 

definitions of a ‘‘contract.’’ In the 

regulations implementing Executive 

Order 13658 (Establishing a Minimum 

Wage for Contractors), for example, the 

Department defined contract as ‘‘an 

agreement between two or more parties 

creating obligations that are enforceable 

or otherwise recognizable at law’’ and 

listed many types of specific 

instruments that fall within that 

definition. 29 CFR 10.2. The 

Department’s SCA regulations, while 

containing a definition of ‘‘contract’’ 

that is similar to the current DavisBacon regulatory definition at 29 CFR 

5.2(h), separately specify that ‘‘the 

nomenclature, type, or particular form 

of contract used . . . is not 

determinative of coverage’’ at 29 CFR 

4.111(a). 

The term ‘‘contract’’ in the DavisBacon and Related Acts has been 

interpreted in a similarly broad manner. 

See, e.g., Bldg. & Const. Trades Dep’t, 

AFL–CIO v. Turnage, 705 F. Supp. 5, 6 

(D.D.C. 1988) (‘‘The Court finds that it 

is reasonable to conclude, as the WAB 

has done, that the nature of the contract 

is not controlling so long as 

construction work is part of it.’’). 

Similarly, in its 1994 memorandum, the 

OLC cited the basic common-law 

understanding of the term to explain 

that, for the purposes of the DBA, 

‘‘[t]here can be no question that a lease 

is a contract, obliging each party to take 

certain actions.’’ 1994 OLC 

Memorandum, 18 Op. O.L.C. at 113 n.3 

(citing Arthur Linton Corbin, Corbin on 

Contracts sections 1.2–1.3 (rev. ed., 

Joseph M. Perillo, ed., 1993)). The 

Davis-Bacon and Related Acts thus have 

been routinely applied to various types 

of agreements that meet the commonlaw definition of a ‘‘contract’’—such as, 

for example, leases, utility privatization 

agreements, individual job orders or 

task letters issued under basic ordering 

agreements, and loans or agreements in 

which the only consideration from the 

agency is a loan guarantee—as long as 

the other elements of DBRA coverage 

are satisfied. 

However, the Department considers 

that it may not be necessary to include 

in the regulatory text itself a similarly 

detailed recitation of types of 

agreements that may be considered to be 

contracts, because such a list necessarily 

follows from the use of the term 

‘‘contract’’ in the statute and the 

Department is not aware of any 

argument to the contrary. The 

Department thus seeks comment on 

whether a more detailed definition of 

the term ‘‘contract’’ is warranted, 

including whether aspects of the 

definition at 29 CFR 10.2 or the SCA 

regulations should or should not be 

included in the regulatory definition of 

contract at § 5.2. 

The Department also seeks comment 

on whether it is necessary to explicitly 

promulgate in the definition of 

‘‘contract’’ in § 5.2, or elsewhere in the 

regulations, an explanation regarding 

contracts that may be found to be void. 

The Department intends the use of the 

term in the regulations to apply also to 

any agreement in which the parties 

intended for a contract to be formed, 

even if (as a matter of the common law) 

the contract may later be considered to 

be void ab initio or otherwise fail to 

satisfy the elements of the traditional 

definition of a contract. Such usage 

follows from the statutory requirement 

that the relevant labor standards clauses 

must be included not just in ‘‘contracts’’ 

but also in the advertised specifications 

that may (or may not) become a covered 

contract. See 40 U.S.C. 3142(a). 

In addition to the term ‘‘contract,’’ the 

existing DBRA regulations use the terms 

‘‘contractor,’’ ‘‘subcontractor,’’ and 

‘‘prime contractor,’’ but do not currently 

define the latter three terms. The 

Department proposes to include a 

definition of the term ‘‘contractor’’ to 

clarify that, where used in the 

regulations, it applies to both prime 

contractors and subcontractors. In 

addition, the definition would clarify 

that sureties may also—under 

appropriate circumstances—be 

considered ‘‘contractors’’ under the 

regulations. This is consistent with the 

Department’s longstanding 

interpretation. See Liberty Mutual Ins., 

ARB No. 00–018, 2003 WL 21499861 at 

*6 (June 30, 2003) (finding that the term 

‘‘contractor’’ included sureties 


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78The definition section in 48 CFR 9.403 

specifies that it applies only ‘‘as used in this 

subpart’’—referring to subpart 9.4 of the FAR. It 

thus applies only to the general suspension and 

debarment provisions of the FAR and thus does not 

apply to the regulations within the FAR that 

implement the Davis-Bacon labor standards, which 

are located in FAR part 22 and the contract clauses 

FAR part 52. The DBRA-specific provisions of the 

FAR are based on the Department’s regulations in 

parts 1, 3, and 5 of subtitle 29 of the CFR, which 

are the subject of this NPRM. Thus, the Department 

expects that, after this rule is final, the FAR Council 

will consider how to amend FAR part 22 and the 

FAR contract clauses to appropriately incorporate 

the new and amended definitions that are adopted 

in the Department’s final rule. The Department does 

not anticipate that this rulemaking would affect 

FAR subpart 9.4. 

completing a contract pursuant to a 

performance bond). As the ARB 

explained in the Liberty Mutual case, 

the term ‘‘contractor’’ in the DBA 

should be interpreted broadly in light of 

Congress’s ‘‘overarching . . . concern’’ 

in the 1935 amendments to the Act that 

the new withholding authority included 

in those amendments would ensure 

workers received the pay they were due. 

Id. (citing S. Rep. No. 1155, at 3 (1935)). 

As discussed below, the proposed 

definition of contractor also reflects the 

long-held interpretation that bona fide 

‘‘material suppliers’’ are generally not 

considered to be contractors under the 

DBRA, subject to certain exceptions. 

The Department also proposes a 

nonsubstantive change to move, with 

minor nonsubstantive edits, two 

sentences from the existing definition of 

‘‘contract’’ to the new definition of 

‘‘contractor.’’ These sentences clarify 

that State and local governments are not 

regarded as contractors or 

subcontractors under the Related Acts 

in situations where construction is 

performed by their own employees, but 

that under statutes that require payment 

of Davis-Bacon prevailing wages to all 

laborers and mechanics employed in the 

assisted project or in the project’s 

development, State and local recipients 

of Federal aid must pay these employees 

according to Davis-Bacon labor 

standards. In addition, the Department 

proposes to supplement that language to 

explain (as the Department has similarly 

clarified in the SCA regulations) that the 

U.S. Government, its agencies, and 

instrumentalities are also not 

contractors or subcontractors for the 

purposes of the Davis-Bacon and 

Related Acts. Cf. 29 CFR 4.1a(f). 

The Department proposes to add a 

definition for the term ‘‘prime 

contractor’’ as it is used in part 5 of the 

regulations. Consistent with the ARB’s 

decision in Liberty Mutual, discussed 

above, the Department proposes a broad 

definition of prime contractor that 

prioritizes the appropriate allocation of 

responsibility for contract compliance 

and enhances the effectiveness of the 

withholding remedy. The proposed 

definition clarifies that the label an 

entity gives itself is not controlling, and 

an entity is considered to be a ‘‘prime 

contractor’’ based on its contractual 

relationship with the Government, its 

control over the entity holding the 

prime contract, or the duties it has been 

delegated. 

The definition begins by identifying 

as a prime contractor any person or 

entity that enters into a covered contract 

with an agency. This includes, under 

appropriate circumstances, entities that 

may not be understood in lay terms to 

be ‘‘construction contractors.’’ For 

example, where a non-profit 

organization, owner/developer, 

borrower or recipient, project manager, 

or single-purpose entity contracts with a 

State or local government agency for 

covered financing or assistance with the 

construction of housing—and the other 

required elements of the relevant statute 

are satisfied—that owner/developer or 

recipient entity is considered to be the 

‘‘prime contractor’’ under the 

regulations. This is so even if the entity 

does not consider itself to be a 

‘‘construction contractor’’ and itself 

does not employ laborers and 

mechanics and instead subcontracts 

with a general contractor to complete 

the construction. See, e.g., Phoenix Dev. 

Co., WAB No. 90–09, 1991 WL 494725, 

at *1 (Mar. 29, 1991) (‘‘It is well settled 

that prime contractors (‘ownersdevelopers’ under the HUD contract at 

hand) are responsible for the DavisBacon compliance of their 

subcontractors.’’); Werzalit of Am., Inc., 

WAB No. 85–19, 1986 WL 193106, at *3 

(Apr. 7, 1986) (rejecting petitioner’s 

argument that it was a loan ‘‘recipient’’ 

standing in the shoes of a State or local 

government and not a prime 

‘‘contractor’’). 

The proposed definition also includes 

as a ‘‘prime contractor’’ the controlling 

shareholder or member of any entity 

holding a prime contract, the joint 

venturers or partners in any joint 

venture or partnership holding a prime 

contract, any contractor (e.g., a general 

contractor) that has been delegated all or 

substantially all of the responsibilities 

for overseeing and/or performing the 

construction anticipated by the prime 

contract, and any other person or entity 

that has been delegated all or 

substantially all of the responsibility for 

overseeing Davis-Bacon labor standards 

compliance on a prime contract. Under 

this definition, more than one entity on 

a contract—for example, both the 

owner/developer and the general 

contractor—may be considered to be 

‘‘prime contractors’’ on the same 

contract. Accordingly, the proposal also 

explains that any two of these 

nominally different legal entities are 

considered to be the ‘‘same prime 

contractor’’ for the purposes of crosswithholding. 

Although the Department has not 

previously included a definition of 

prime contractor in the implementing 

regulations, the proposed definition is 

consistent with the Department’s prior 

enforcement of the DBRA. In 

appropriate circumstances, for example, 

the Department has considered a general 

contractor to be a ‘‘prime contractor’’ 

that is therefore responsible for the 

violations of its subcontractors under 

the regulations—even where that 

general contractor does not directly hold 

the contract with the Government (or is 

not the direct recipient of Federal 

assistance), but instead has been hired 

by the private developer that holds the 

overall construction contract. See 

Palisades Urb. Renewal Enters. LLP., 

OALJ No. 2006–DBA–00001 (Aug. 3, 

2007), at 16, aff’d, ARB No. 07–124, 

(July 30, 2009); Milnor Constr. Corp., 

WAB No. 91–21, 1991 WL 494763, at 

*1, 3 (Sept. 12, 1991); cf. Vulcan Arbor 

Hill Corp. v. Reich, 81 F.3d 1110, 1116 

(D.C. Cir. 1996) (referencing agreement 

by developer that ‘‘its prime’’ contractor 

would comply with Davis-Bacon 

standards). Likewise, where a joint 

venture holds the contract with the 

government, the Department has 

characterized the actions of the parties 

to that joint venture as the actions of 

‘‘prime contractors.’’ See Big Six, Inc., 

WAB No. 75–03, 1975 WL 22569, at *2 

(July 21, 1975). 

The proposed definition of prime 

contractor is also similar to, although 

somewhat narrower than, the broad 

definition of the term ‘‘contractor’’ in 

the FAR part 9 regulations that govern 

suspension and debarment across a 

broad swath of Federal procurement 

contracts. In that context, where the 

Federal Government seeks to protect its 

interest in effectively and efficiently 

completing procurement contracts, the 

FAR Council has adopted an expansive 

definition of contractor that includes 

affiliates or principals that functionally 

control the prime contract with the 

government. See 48 CFR 9.403. Under 

that definition, ‘‘Contractor’’ means any 

individual or entity that ‘‘[d]irectly or 

indirectly (e.g., through an affiliate)’’ is 

awarded a Government contract or 

‘‘[c]onducts business . . . with the 

Government as an agent or 

representative of another contractor.’’ 

Id.78 The Department has a similar 

interest here in protecting against the 

use of the corporate form to avoid 


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79The proposal addressing trainees is discussed 

in greater detail below in section III.B.3.iii.(C) (‘‘29 

CFR 5.5(a)(4) Apprentices.’’). 

80See, e.g., AAM 212 (Mar. 22, 2013). While 

AAM 212 was rescinded to allow the Department 

to seek a broader appreciation of the coverage issue 

it addressed and due to its incomplete 

implementation, see AAM 235 (Dec. 14, 2020), its 

rescission did not change the applicable standard, 

which is the definition of ‘‘laborer or mechanic’’ as 

currently set forth in 29 CFR 5.2(m). 

responsibility for the Davis-Bacon labor 

standards. 

The Department seeks comment on 

the proposed definition of ‘‘prime 

contractor,’’ in particular as it affects the 

withholding contract clauses at 

§ 5.5(a)(2) and (b)(3), the prime 

contractor responsibility provisions at 

§ 5.5(a)(6) and (b)(4), and the proposed 

provisions in § 5.9 regarding the 

authority and responsibility of 

contracting agencies for satisfying 

requests for cross-withholding. 

Finally, the Department proposes a 

new definition of the term 

‘‘subcontractor.’’ The proposed 

definition would affirmatively state that 

a ‘‘subcontractor’’ is ‘‘any contractor 

that agrees to perform or be responsible 

for the performance of any part of a 

contract that is subject wholly or in part 

to the labor standards provisions of any 

of the laws referenced in § 5.1.’’ Like the 

current definition of ‘‘contract,’’ the 

proposed definition of ‘‘subcontractor’’ 

also reflects that the Act covers 

subcontracts of any tier—and thus the 

proposed definition of ‘‘subcontractor’’ 

would state that the term includes 

subcontractors of any tier. See 40 U.S.C. 

3412; Castro v. Fid. & Deposit Co. of 

Md., 39 F. Supp. 3d 1, 6–7 (D.D.C. 

2014). The proposed definition for 

‘‘subcontractor’’ necessarily excludes 

material suppliers (except for narrow 

exceptions), because such material 

suppliers are excluded from the 

definition of ‘‘contractor,’’ as proposed, 

and that definition applies to both 

prime contractors and subcontractors. 

Finally, the proposed definition of 

‘‘subcontractor’’ also clarifies that the 

term does not include laborers or 

mechanics for whom a prevailing wage 

must be paid. As discussed below, and 

as Congress expressly indicated, the 

requirement to pay a prevailing wage to 

ordinary laborers and mechanics cannot 

be evaded by characterizing such 

workers as ‘‘owner operators’’ or 

‘‘subcontractors.’’ See 40 U.S.C. 

3142(c)(1) (requiring payment of 

prevailing wage ‘‘regardless of any 

contractual relationship which may be 

alleged to exist between the contractor 

or subcontractor and the laborers and 

mechanics’’). 

(E) Apprentice and Helper 

The Department proposes to amend 

the current regulatory definition in 

§ 5.2(n) of ‘‘apprentice, trainee, and 

helper’’ to remove references to trainees. 

A trainee is currently defined as a 

person registered and receiving on-thejob training in a construction 

occupation under a program approved 

and certified in advance by ETA as 

meeting its standards for on-the-job 

training programs, but ETA no longer 

reviews or approves on-the-job training 

programs so this definition is 

unnecessary. See section III.B.3.iii.(C) 

(‘‘29 CFR 5.5(a)(4) Apprentices.’’). The 

Department also proposes to modify the 

definition of ‘‘apprentice and helper’’ to 

reflect the current name of the office 

designated by the Secretary of Labor, 

within the Department, to register 

apprenticeship programs. 

(F) Laborer or Mechanic 

The Department proposes to amend 

the regulatory definition of ‘‘laborer or 

mechanic’’ to remove the reference to 

trainees and to replace the term 

‘‘foremen’’ with the gender-neutral term 

‘‘working supervisors.’’ 79 The 

Department does not propose any 

additional substantive changes to this 

definition. 

However, because the Department 

frequently receives questions pertaining 

to the application of the definition of 

‘‘laborer or mechanic’’—and thus the 

application the Davis-Bacon labor 

standards—to members of survey crews, 

the Department provides the following 

information to clarify when survey crew 

members are laborers or mechanics 

under the existing definition of that 

term. 

The Department has historically 

recognized that members of survey 

crews who perform primarily physical 

and/or manual work on a DBA or 

Related Acts covered project on the site 

of the work immediately prior to or 

during construction in direct support of 

construction crews may be laborers or 

mechanics subject to the Davis-Bacon 

labor standards.80 Whether or not a 

specific survey crew member is covered 

by these standards is a question or fact, 

which takes into account the actual 

duties performed and whether these 

duties are ‘‘manual or physical in 

nature’’ including the ‘‘use of tools or 

. . . work of a trade.’’ When considering 

whether a survey crew member 

performs primarily physical and/or 

manual duties, it is appropriate to 

consider the relative importance of the 

worker’s different duties, including (but 

not solely) the time spent performing 

these duties. Thus, survey crew 

members who spend most of their time 

on a covered project taking or assisting 

in taking measurements would likely be 

deemed laborers or mechanics 

(provided that they do not meet the tests 

for exemption as professional, 

executive, or administrative employees 

under part 541). If their work meets 

other required criteria (i.e., it is 

performed on the site of the work, 

where required, and immediately prior 

to or during construction in direct 

support of construction crews), it would 

be covered by the Davis-Bacon labor 

standards. 

The Department seeks comment on 

issues relevant to the application of the 

current definition to survey crew 

members, especially the range of duties 

performed by, and training required of, 

survey crew members who perform 

work on construction projects and 

whether the range of duties or required 

training varies for different roles within 

a survey crew based on the licensure 

status of the crew members, or for 

different types of construction projects. 

(G) Site of the Work and Related 

Provisions 

The Department proposes the 

following revisions related to the 

DBRA’s ‘‘site of the work’’ requirement: 

(1) Revising the definition of ‘‘site of the 

work’’ to further encompass certain 

construction of significant portions of a 

building or work at secondary 

worksites, (2) clarifying the application 

of the ‘‘site of the work’’ principle to 

flaggers, (3) revising the regulations to 

better delineate and clarify the ‘‘material 

supplier’’ exemption, and (4) revising 

the regulations to set clear standards for 

DBA coverage of truck drivers. 

(1) Current Statutory and Regulatory 

Provisions Related to Site of the Work 

a. Site of the Work 

The DBA and Related Acts generally 

apply to ‘‘mechanics and laborers 

employed directly on the site of the 

work’’ by ‘‘contractor[s]’’ and 

‘‘subcontractor[s]’’ on contracts for 

‘‘construction, alteration, or repair, 

including painting and decorating, of 

[covered] public buildings and public 

works.’’ 40 U.S.C. 3142(a), (c)(1). The 

Department’s current regulations define 

‘‘site of the work’’ as including ‘‘the 

physical place or places where the 

building or work called for in the 

contract will remain’’ and ‘‘any other 

site where a significant portion of the 

building or work is constructed, 

provided that such site is established 

specifically for the performance of the 

contract or project.’’ 29 CFR 5.2(l)(1). 

They further provide that in general, 

‘‘job headquarters, tool yards, batch 

plants, borrow pits, etc.’’ are part of the 


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81For more detail on this topic, see the section 

titled ‘‘Coverage of Construction Work at Secondary 

Construction Sites.’’ 

82Prior to 2000, the Department had interpreted 

‘‘site of the work’’ more broadly to include, in 

addition to the site where the work or building 

would remain, ‘‘adjacent or nearby property used 

by the contractor or subcontractor in such 

construction which can reasonably be said to be 

included in the ‘site.’ ’’ 29 CFR 5.2(l) (1990); see 65 

FR 80268, 80269 (Dec. 20, 2000); AAM 86 (Feb. 11, 

1970). 

83Prior to 1992, the Department had interpreted 

the DBA as covering the transportation of materials 

and supplies to or from the site of the work by 

workers employed by a contractor or subcontractor. 

See 29 CFR 5.2(j) (1990). 

‘‘site of the work’’ if they are ‘‘dedicated 

exclusively, or nearly so, to performance 

of the covered contract or project’’ and 

also are ‘‘adjacent or virtually adjacent 

to the site of the work’’ itself. 29 CFR 

5.2(l)(2). 

The ‘‘site of the work’’ requirement 

does not apply to Related Acts that 

extend Davis-Bacon coverage to all 

laborers and mechanics employed in the 

‘‘development’’ of a project; such 

statutes include the United States 

Housing Act of 1937; the Housing Act 

of 1949; and the Native American 

Housing Assistance and SelfDetermination Act of 1996. See 

§ 5.2(j)(1); 42 U.S.C. 1437j(a); 25 U.S.C. 

4114(b)(1), 4225(b)(1)(B); 42 U.S.C. 

12836(a). As the Department has 

previously noted, ‘‘the language and/or 

clear legislative history’’ of these 

statutes ‘‘reflected clear congressional 

intent that a different coverage standard 

be applied.’’ 65 FR 80267 at 80275; see, 

e.g., L.T.G. Constr. Co., WAB Case No. 

93–15, 1994 WL 764105, at *4 (Dec. 30, 

1994) (noting that ‘‘the Housing Act [of 

1937] contains no ‘site of work’ 

limitation similar to that found in the 

Davis-Bacon Act’’). 

b. Off-Site Transportation 

The ‘‘site of the work’’ requirement is 

also referenced in the current 

regulation’s definition of ‘‘construction, 

prosecution, completion, or repair,’’ 

which provides that ‘‘the transportation 

of materials or supplies to or from the 

site of the work’’ is not covered by the 

DBRA, except for such transportation 

under the statutes to which the ‘‘site of 

the work’’ requirement does not apply. 

29 CFR 5.2(j)(2). However, 

transportation to or from the site of the 

work is covered by the DBRA where a 

covered laborer or mechanic (1) 

transports materials between an 

‘‘adjacent or virtually adjacent’’ 

dedicated support site that is part of the 

site of the work pursuant to 29 CFR 

5.2(l)(2), or (2) transports portions of the 

building or work between a site where 

a significant portion of the building or 

work is constructed and that is 

established specifically for contract or 

job performance, which is part of the 

site of the work pursuant to 29 CFR 

5.2(l)(1), and the physical place or 

places where the building or work will 

remain.81

c. Material Supplier Exception 

While not explicitly set out in the 

statute, the DBA has long been 

understood to exclude from coverage 

employees of bona fide ‘‘material 

suppliers’’ or ‘‘materialmen’’ whose sole 

responsibility is to provide materials 

(such as sand, gravel, and ready-mixed 

concrete) to a project if they also supply 

those materials to the general public, 

and the plant manufacturing the 

materials is not established specifically 

for a particular contract or located at the 

site of the work. See AAM 45 (Nov. 9, 

1962) (enclosing WHD Opinion Letter 

DB–30 (Oct. 15, 1962)); AAM 36 (Mar. 

16, 1952) (enclosing WHD Opinion 

Letter DB–22 (Mar. 12, 1962)); H.B. 

Zachry Co. v. United States, 344 F.2d 

352, 359 (Ct. Cl. 1965); FOH 15e16. This 

principle has generally been understood 

to derive from the limitation of the 

DBA’s statutory coverage to 

‘‘contractor[s]’’ and ‘‘subcontractor[s].’’ 

See AAM 36, WHD Opinion Letter DB– 

22, at 2 (discussing ‘‘the application of 

the term subcontractor, as distinguished 

from materialman or submaterialman’’); 

cf. MacEvoy v. United States, 322 U.S. 

102 (1944) (distinguishing a 

‘‘subcontractor’’ from ‘‘ordinary laborers 

and materialmen’’ under the Miller Act); 

FOH 15e16 (‘‘[B]ona fide material 

suppliers are not considered contractors 

under DBRA.’’). As the Department has 

explained, this exception applies to 

employees of companies ‘‘whose only 

contractual obligations for on-site work 

are to deliver materials and/or pick up 

materials.’’ PWRB, DBA/DBRA 

Compliance Principles at 7 (emphasis 

added). 

Like the ‘‘site of the work’’ restriction, 

the material supplier exception does not 

apply to work under statutes that extend 

Davis-Bacon coverage to all laborers and 

mechanics employed in the 

‘‘development’’ of a project, regardless 

of whether they are employed by 

‘‘contractors’’ or ‘‘subcontractors.’’ See 

existing regulation 29 CFR 5.2(j)(1) 

(defining ‘‘construction, prosecution, 

completion, or repair’’ as including 

‘‘[a]ll types of work done on a particular 

building or work at the site thereof . . . 

by laborers and mechanics employed by 

a construction contractor or 

construction subcontractor (or, under 

the United States Housing Act of 1937; 

the Housing Act of 1949; and the Native 

American Housing Assistance and SelfDetermination Act of 1996, all work 

done in the construction or 

development of the project)’’); existing 

regulation 29 CFR 5.2(i) (‘‘The 

manufacture or furnishing of materials, 

articles, supplies or equipment . . . is 

not a building or work within the 

meaning of the regulations in this part 

unless conducted in connection with 

and at the site of such a building or 

work as is described in the foregoing 

sentence, or under the United States 

Housing Act of 1937 and the Housing 

Act of 1949 in the construction or 

development of the project.’’). 

d. Relevant Regulatory History and Case 

Law 

The regulatory provisions discussed 

above were shaped by three appellate 

court decisions between 1992 and 2000. 

The language in § 5.2(l) that deems 

dedicated sites such as batch plants and 

borrow pits part of the site of the work 

only if they are ‘‘adjacent or virtually 

adjacent’’ to the construction site was 

adopted in 2000 in response to Ball, Ball 

& Brosamer, Inc. v. Reich, 24 F. 3d 1447 

(D.C. Cir. 1994) and L.P. Cavett 

Company v. U.S. Dep’t of Labor, 101 

F.3d 1111 (6th Cir. 1996), which 

concluded that batch plants located 

only a few miles from the construction 

site (2 miles in Ball, 3 miles in L.P. 

Cavett) were not part of the ‘‘site of the 

work.’’ See 65 FR 80268 (‘‘2000 final 

rule’’).82 The ‘‘adjacent or virtually 

adjacent’’ requirement in the current 

regulatory text is one that the courts in 

Ball and L.P. Cavett suggested would be 

permissible. Similarly, the provision in 

§ 5.2(j)(2) that excludes, with narrow 

exceptions, ‘‘the transportation of 

materials or supplies to or from the site 

of the work’’ from coverage stems from 

a 1992 interim final rule, see 57 FR 

19204 (May 4, 1992) (‘‘1992 IFR’’), that 

implemented Building & Construction 

Trades Dep’t, AFL–CIO v. U.S. Dep’t of 

Labor Wage Appeals Bd. (Midway), in 

which the D.C. Circuit held that drivers 

of a prime contractor’s subsidiary who 

picked up supplies and transported 

them to the job site were not covered by 

the DBA because ‘‘the Act applies only 

to employees working directly on the 

physical site of the public building or 

public work under construction.’’ 932 

F.2d 985, 990 (D.C. Cir. 1991).83

(2) Proposed Regulatory Revisions 

The Department proposes the 

following regulatory changes related to 

the ‘‘site of the work’’ requirement: (1) 

Revising the definition of ‘‘site of the 

work’’ to further encompass certain 

construction of significant portions of a 


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84http://modular.org/documents/public/ 

PrefabModularSmartMarketReport2020.pdf. 

85https://www.gsa.gov/cdnstatic/SCHEDULE_56_

-_ORDERING_GUIDE.pdf. 86See note 85, supra. 

building or work at secondary 

worksites, (2) clarifying the application 

of the ‘‘site of the work’’ principle to 

flaggers, (3) revising the regulations to 

better delineate and clarify the ‘‘material 

supplier’’ exemption, and (4) revising 

the regulations to set clear standards for 

DBA coverage of truck drivers. Each 

proposal is explained in turn. 

a. Coverage of Construction Work at 

Secondary Construction Sites 

In the 2000 final rule, the Department 

amended the definition of ‘‘site of the 

work’’ to include a site away from the 

location where the building or work will 

remain, where the site is established 

specifically for the performance of the 

contract or project and a ‘‘significant 

portion’’ of a building or work is 

constructed at the site. 29 CFR 5.2(l)(1). 

The Department explained that this 

change was intended to respond to 

technological developments that had 

enabled companies in some cases to 

construct entire portions of public 

buildings or works off-site, leaving only 

assembly or placement of the building 

or work remaining. See 65 FR 80273 

(describing ‘‘the innovative construction 

techniques developed and currently in 

use, which allow significant portions of 

public buildings and public works to be 

constructed at locations other than the 

final resting place of the building or 

work’’). The Department cited examples, 

including a dam project where ‘‘two 

massive floating structures, each about 

the length of a football field’’ were 

constructed upriver and then floated 

downriver and submerged, the 

construction and assembly of military 

housing units in Portland for final 

placement in Alaska, and the 

construction of modular units to be 

assembled into a mobile service tower 

for Titan missiles. See id. (citing ATCO 

Construction, Inc., WAB No. 86–1 (Aug. 

22, 1986), and Titan IV Mobile Serv. 

Tower, WAB No. 89–14 (May 10, 1991)). 

The Department stressed that this new 

provision would apply only at a 

location where ‘‘such a large amount of 

construction is taking place that it is fair 

and reasonable to view such location as 

a site where the public building or work 

is being constructed,’’ and reaffirmed its 

longstanding position that ‘‘[o]rdinary 

commercial fabrication plants, such as 

plants that manufacture prefabricated 

housing components,’’ are not part of 

the site of the work. 65 FR at 80274; see, 

e.g., AAM 86 (Feb. 11, 1970) at 1–2 

(explaining that the site of the work 

does not include a contractor’s 

permanent ‘‘fabrication plant[s] . . . 

whose locations and continuance are 

governed by his general business 

operations . . . even though mechanics 

and laborers working at such an 

establishment may . . . make doors, 

windows, frames, or forms’’). It 

accordingly described this expansion of 

coverage as a narrow one. See 65 FR at 

80276 (‘‘[T]he Department believes that 

the instances where substantial amounts 

of construction are performed at one 

location and then transported to another 

location for final installation are rare.’’). 

Consistent with this amendment, the 

Department also revised § 5.2(j) to cover 

transportation of portion(s) of the 

building or work between such a site 

and the location where the building or 

work would remain. 

Since 2000, technological 

developments have continued to 

facilitate off-site construction that 

replaces on-site construction to an even 

greater degree, and the Department 

expects such trends to continue in the 

future. For example, one recent industry 

analysis notes that both design firms 

and contractors ‘‘are forecasting 

expanded use of both [prefabrication 

and modular construction] over the 

coming years as the benefits are more 

widely measured, owners become 

increasingly comfortable with the 

process and the outcomes, and the 

industry develops more resources to 

support innovative applications.’’ Dodge 

Data and Analytics, Prefabrication and 

Modular Construction 2020 (2020), at 

4.84 In the specific context of Federal 

government contracting, a GSA 

document cites several benefits to ‘‘preengineered’’ or ‘‘modular’’ construction, 

including decreased construction time, 

cost savings, and fewer environmental 

and safety hazards. GSA, Schedule 56— 

Building and Building Materials, 

Industrial Service and Supplies, PreEngineered/Prefabricated Buildings 

Customer Ordering Guide (GSA 

Schedule 56), at 5–7.85

In the 2000 final rule, the Department 

explained that ‘‘[i]t [was] the 

Department’s intention in [that] 

rulemaking to require in the future that 

workers who construct significant 

portions of a Federal or federally 

assisted project at a location other than 

where the project will finally remain, 

will receive prevailing wages as 

Congress intended when it enacted the 

Davis-Bacon and related Acts.’’ 65 FR at 

80274. However, by limiting such 

coverage to facilities that are established 

specifically for the performance of a 

particular contract or project, the 

current regulation falls short of its stated 

goal. The Department stated at the time 

that this limit was necessary to exclude 

‘‘[o]rdinary commercial fabrication 

plants, such as plants that manufacture 

prefabricated housing components.’’ 65 

FR at 80274. However, such an 

exclusion can be more effectively 

accomplished with language that 

expands on the term ‘‘significant 

portion.’’ 

The Department accordingly proposes 

to revise Davis-Bacon coverage of offsite construction of ‘‘significant 

portions’’ of a building or work so that 

such coverage is not limited to facilities 

established specifically for the 

performance of a contract or project. 

Rather, the Department proposes to 

amend the definition of ‘‘site of the 

work’’ to include off-site construction 

where the ‘‘significant portions’’ are 

constructed for specific use in a 

designated building or work, rather than 

simply reflecting products that the 

contractor or subcontractor makes 

available to the general public. The 

Department also proposes to explain the 

term ‘‘significant portions’’ to ensure 

that this expansion does not result in 

the coverage of activities that have long 

been understood to be outside the 

DBA’s scope. 

Specifically, the Department proposes 

to explain that ‘‘significant portion’’ 

means that entire portions or modules of 

the building or work, as opposed to 

smaller prefabricated components, are 

delivered to the place where the 

building or work will remain, with 

minimal construction work remaining 

other than the installation and/or 

assembly of the portions or modules. As 

the Midway court observed, the 1932 

House debate on the DBA demonstrates 

that its drafters understood that off-site 

prefabrication sites would generally not 

beconsidered part of the site of the 

work. See Midway, 932 F.2d at 991 n.12. 

As in 2000, the Department does not 

propose to alter this well-established 

principle. Such prefabrication, however, 

is distinguishable from modern methods 

of ‘‘pre-engineering’’ or ‘‘modular’’ 

construction, in which significant 

portions of a building or work are 

constructed and then simply assembled 

onsite ‘‘similar to a child’s building 

block kit.’’ GSA Schedule 56 at 5.86

Under the latter circumstances, as the 

Department noted in 2000, ‘‘such a large 

amount of construction is taking place 

[at an offsite location] that it is fair and 

reasonable to view such location as a 

site where the public building or work 

is being constructed.’’ 65 FR at 80274; 

see also id. at 80272 (stating that ‘‘the 

Department views such [secondary 

construction] locations as the actual 


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87The Department notes that under this 

definition, an employer that contracts only for 

pickup of materials from the site of the work is not 

a material supplier but a subcontractor. This is 

consistent with the plain meaning of the term 

‘‘material supplier’’ and with the Department’s case 

law. See Kiewit-Shea, Case No. 84–DBA–34, 1985 

WL 167240 (OALJ Sept. 6, 1985), at *2 (concluding 

that companies whose contractual duties ‘‘called for 

hauling away material and not for its supply’’ were 

subcontractors, not material suppliers’’), aff’d, 

Maryland Equipment, Inc., WAB No. 85–24, 1986 

WL 193110 (June 13, 1986). 

physical site of the public building or 

work being constructed’’). In other 

words, when ‘‘significant portions’’ of a 

building or work that historically would 

have been built where the building or 

work will ultimately remain are instead 

constructed elsewhere, the exclusion 

from the DBA of laborers and mechanics 

engaged in such construction is 

inconsistent with the DBA. 

In light of the contractor/material 

supplier distinction discussed above, 

the Department also proposes to add, as 

an additional requirement for coverage 

of offsite construction, that the portions 

or modules are constructed for specific 

use in a designated building or work, 

rather than simply reflecting products 

that the contractor or subcontractor 

makes available to the general public. 

When significant portions or modules 

are constructed specifically for a 

particular building or work and not as 

part of the contractor’s regular 

manufacturing operations, the company 

is not a material supplier but a 

contractor or subcontractor. See United 

Constr. Co., Inc., WAB No. 82–10, 1983 

WL 144675, at *3 (Jan. 14, 1983) 

(examining, as part of an inquiry into 

whether support activities are on the 

‘‘site of the work,’’ ‘‘whether the 

activities are sufficiently independent of 

the primary project to determine that 

the function of the support activities 

may be viewed as similar to that of 

materialman’’). 

For clarity, the Department also 

proposes to amend § 5.2 to use the term 

‘‘secondary construction sites’’ to 

describe such locations, and to use the 

term ‘‘primary construction sites’’ to 

describe the place where the building or 

work will remain. The Department 

additionally proposes to use the term 

‘‘nearby dedicated support site’’ to 

describe locations such as batch plants 

that are part of the site of the work 

because they are dedicated exclusively, 

or nearly so, to the project, and are 

adjacent or nearly adjacent to a primary 

or secondary construction site. 

The Department specifically seeks 

public comment on (1) examples of the 

types of off-site construction techniques 

described above, and the extent to 

which they are used in government and 

government-funded contracting, and (2) 

whether the proposed limits, including 

the clarification of ‘‘significant portion,’’ 

are appropriate. 

b. Clarification of Application of ‘‘Site 

of the Work’’ Principle to Flaggers 

The Department also proposes to 

clarify that workers engaged in traffic 

control and related activities adjacent or 

nearly adjacent to the primary 

construction site are working on the site 

of the work. Often, particularly for 

heavy and highway projects, it is 

necessary to direct pedestrian or 

vehicular traffic around or away from 

the primary construction site. Certain 

workers of contractors or 

subcontractors, typically called 

‘‘flaggers’’ or ‘‘traffic directors,’’ may 

therefore engage in activities such as 

setting up barriers and traffic cones, 

using a flag and/or stop sign to control 

and direct traffic, and related activities 

such as helping heavy equipment move 

in and out of construction zones. 

Although some flaggers work within the 

confines of the primary construction 

site, others work outside of that area and 

do not enter the construction zone itself. 

The Department has previously 

explained that flaggers are laborers or 

mechanics within the meaning of the 

DBA. See AAM 141 (Aug. 16, 1985); 

FOH 15e10(a); Superior Paving & 

Materials, Inc., ARB No. 99–065 (June 

12, 2002). The Department now 

proposes to clarify, in the definition of 

‘‘nearby dedicated support sites,’’ that 

such workers, even if they are not 

working precisely on the site where the 

building or work would remain, are 

working on the site of the work if they 

work at a location adjacent or virtually 

adjacent to the primary construction 

site, such as a few blocks away or a 

short distance down a highway. 

Although the Department believes that 

any adjacent or virtually adjacent 

locations at which such work is 

performed are included within the 

current regulatory ‘‘site of the work’’ 

definition, given that questions have 

arisen regarding this coverage issue, the 

Department proposes to make this 

principle explicit. 

As the Department has previously 

noted, such work by flaggers and traffic 

operators is integrally related to other 

construction work at the worksite and 

construction at the site would not be 

possible otherwise. See AAM 141; FOH 

15e10(a). Additionally, as noted above 

and as the ARB has previously 

explained, the principle of adjacency or 

virtual adjacency in this context is 

consistent with the statutory ‘‘site of the 

work’’ limitation as interpreted by 

courts. See Bechtel Constructors Corp., 

ARB No. 97–149, 1998 WL 168939, at *5 

(March 25, 1998) (explaining that ‘‘it is 

not uncommon or atypical for 

construction work related to a project to 

be performed outside the boundaries 

defined by the structure that remains 

upon completion of the work,’’ such as 

where a crane in an urban environment 

is positioned adjacent to the future 

building site). This proposed change 

would therefore be consistent with the 

DBA and would eliminate any 

ambiguity regarding these workers’ 

coverage. 

c. Clarification of ‘‘Material Supplier’’ 

Distinction 

Next, the Department proposes to 

clarify the distinction between 

subcontractors and ‘‘material suppliers’’ 

and to make explicit that employees of 

material suppliers are not covered by 

the DBA and most of the Related Acts. 

Although, as explained above, this 

distinction has existed since the DBA’s 

inception, the precise line between 

‘‘material supplier’’ and ‘‘subcontractor’’ 

is not always clear, and is sometimes 

the subject of litigation. 

The Department proposes to clarify 

the scope of the material supplier 

exception consistent with case law and 

WHD guidance. First, the Department 

proposes to add a new definition of 

‘‘material supplier’’ to § 5.2, and to 

define the term as an employer meeting 

three criteria: First, the employer’s only 

obligations for work on the contract or 

project are the delivery of materials, 

articles, supplies, or equipment, which 

may include pickup in addition to, but 

not exclusive of, delivery; 87 second, the 

employer also supplies materials to the 

general public; and third, the 

employer’s facility manufacturing the 

materials, articles, supplies, or 

equipment, is neither established 

specifically for the contract or project 

nor located at the site of the work. See 

H.B. Zachry, 344 F.2d at 359; AAM 5 

(Dec. 26, 1957); AAM 31 (Dec. 11, 1961); 

AAM 36 (Mar. 16, 1962); AAM 45 (Nov. 

9, 1962); AAM 53 (July 22, 1963). The 

subsection further clarifies that if an 

employer, in addition to being engaged 

in material supply and pickup, also 

engages in other construction, 

prosecution, completion, or repair work 

at the site of the work, it is not a 

material supplier but a subcontractor. 

See PWRB, DBA/DBRA Compliance 

Principles, at 7–8 (‘‘[I]f a material 

supplier, manufacturer, or carrier 

undertakes to perform a part of a 

construction contract as a subcontractor, 

its laborers and mechanics employed at 

the site of the work would be subject to 

Davis-Bacon labor standards in the same 

manner as those employed by any other 


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contractor or subcontractor.’’); FOH 

15e16(c) (same). 

While the Davis-Bacon regulations 

have not previously included 

definitions of ‘‘contractor’’ or 

‘‘subcontractor,’’ this proposed rule, as 

discussed above, would add such 

definitions into § 5.2. The Department 

therefore proposes to incorporate the 

material supplier exception into the 

proposed new definition of 

‘‘contractor,’’ which is incorporated into 

the proposed definition of 

‘‘subcontractor.’’ Specifically, the 

Department proposes to exclude 

material suppliers from the regulatory 

definition of ‘‘contractor,’’ with the 

exception of entities performing work 

under Related Acts that apply the DavisBacon labor standards to all laborers 

and mechanics employed in a project’s 

development, given that, as explained, 

the application of such statutes is not 

limited to ‘‘contractors’’ or 

‘‘subcontractors.’’ 

d. Coverage of Time for Truck Drivers 

Finally, the Department proposes to 

revise the regulations to clarify coverage 

of truck drivers under the DBA. Since 

Midway, various questions have arisen 

regarding the application of the DBA 

and the Related Acts to truck drivers. 

While the Department’s regulations 

address this issue to a certain extent, the 

Department has expanded on these 

issues in regulatory preambles and 

subregulatory guidance, which differ 

depending on whether truck drivers are 

employed by material suppliers or by 

contractors or subcontractors. 

As noted above, the DBA does not 

apply to workers employed by bona fide 

material suppliers. However, under 

current WHD policy, if a material 

supplier, in addition to providing 

supplies, also performs onsite 

construction, alteration, or repair work 

as a subcontractor—such as a precast 

concrete item supplier that also repairs 

and cleans such items at the worksite or 

an equipment rental dealer that also 

repairs its leased equipment onsite— 

then its workers are covered for any onsite time for such construction work that 

is ‘‘more than . . . incidental.’’ FOH 

15e16(c); PWRB, DBA/DBRA 

Compliance Principles at 7–8. For 

enforcement purposes, if a material 

supplier’s worker spends more than 20 

percent of the workweek performing 

such construction work on-site, all of 

the employee’s on-site time during that 

workweek is covered. 

For truck drivers employed by 

contractors or subcontractors, the 

Department has explained that such 

drivers’ time is covered under certain 

circumstances. See FOH 15e22. First, 

‘‘truck drivers who haul materials or 

supplies from one location on the site of 

the work to another location on the site 

of the work’’ are covered. 65 FR at 

80275. Such ‘‘on-site hauling’’ is 

unaffected by Midway, which concerned 

the coverage of off-site hauling. Based 

on the same principle, any other 

construction work that drivers perform 

on the site of the work that is not related 

to off-site hauling is also covered. See 

FOH 15e22(a)(1) (stating that drivers are 

covered ‘‘for time spent working on the 

site of the work’’). Second, ‘‘truck 

drivers who haul materials or supplies 

from a dedicated facility that is adjacent 

or virtually adjacent to the site of the 

work’’ are covered for all of their time 

spent in those activities. 65 FR at 

80275–76; 29 CFR 5.2(j)(1)(iv)(A); FOH 

15e22(a)(3). Such drivers are hauling 

materials or supplies between two 

locations on the site of the work, and 

given the requirement of adjacency or 

virtual adjacency, any intervening offsite time is likely extremely minimal. 

Third, drivers are covered for time spent 

transporting portion(s) of the building or 

work between a secondary site, 

established specifically for contract or 

project performance and where a 

‘‘significant portion’’ of the work is 

constructed, and the site where the 

building or work will remain. See 29 

CFR 5.2(j)(1)(iv)(B); 65 FR at 80276; 

FOH 15e22(a)(4). As the Department has 

explained, ‘‘under these 

circumstances[,] the site of the work is 

literally moving between the two work 

sites,’’ 65 FR 57269, 57273, and as such, 

‘‘workers who are engaged in 

transporting a significant portion of the 

building or work between covered sites 

. . . are ‘employed directly upon the 

site of the work[.]’ ’’ 65 FR at 80276. 

Fourth, drivers are covered for any time 

spent on the site of the work that is 

related to hauling materials to or from 

the site, such as loading or unloading 

materials, provided that such time is 

more than de minimis—a standard that, 

as currently applied, excludes drivers 

‘‘who come onto the site of the work for 

only a few minutes at a time merely to 

drop off construction materials.’’ 65 FR 

at 80276; FOH 15e22(a)(2); PWRB, DBA/ 

DBRA Compliance Principles, at 6–7. 

Feedback from stakeholders, 

including contractors and contracting 

agencies, indicates that there is 

significant uncertainty regarding this 

topic. Such uncertainty includes the 

distinction between drivers for material 

supply companies versus drivers for 

construction contractors or 

subcontractors; what constitutes de 

minimis; whether the de minimis 

determination is made on a per trip, per 

day, or per week basis; and whether the 

20 percent threshold for construction 

work performed onsite by material 

supply drivers is also applicable to 

delivery time spent on site by drivers 

employed by a contractor or 

subcontractor. This lack of clarity has 

also led to divergent interpretations by 

Department ALJs. Compare Rogers 

Group, ALJ No. 2012–DBA–00005 

(OALJ May 28, 2013) (concluding that a 

subcontractor was not required to pay 

its drivers prevailing wages for 

sometimes-substantial amounts of onsite time (as much as 7 hours 30 

minutes in a day) making deliveries of 

gravel, sand, and asphalt from offsite) 

with E.T. Simonds Constr. Co., ALJ No. 

2021–DBA–00001 (OALJ May 25, 2021), 

appeal pending, ARB No. 21–054 

(concluding that drivers employed by a 

subcontractor who hauled materials 

from the site of the work and spent at 

least 15 minutes per hour—25 percent 

of the workday—on site were covered 

for their onsite time). 

Taking the above into account, the 

Department proposes to revise the 

regulations to clarify coverage of truck 

drivers in the following manner: 

First, as noted above, the Department 

has proposed to clarify that employees 

of ‘‘material suppliers’’ are not covered 

by the DBRA, except for those Related 

Acts to which the material supplier 

exception does not apply. The proposed 

definition of a ‘‘material supplier’’ is 

limited to companies whose only 

contractual responsibilities are material 

supply and thus excludes companies 

that also perform any on-site 

construction, alteration, or repair. The 

Department believes that this proposed 

clarification will make the distinction 

between contractors/subcontractors and 

material suppliers clear. It also obviates 

the need for the 20 percent threshold for 

coverage of construction work 

performed onsite by material supply 

drivers discussed above, because, by 

definition, any drivers whose 

responsibilities include performing 

onsite construction work in addition to 

material supply are employed by 

subcontractors, not material suppliers. 

Thus, under this proposed rule, any 

time that drivers spend performing such 

construction work on the site of the 

work would be covered regardless of 

amount, as is the case for other laborers 

and mechanics. 

Second, the Department proposes to 

amend its regulations concerning the 

coverage of transportation by truck 

drivers who are included within the 

DBA’s scope generally (i.e., truck 

drivers employed by contractors and 

subcontractors, as well as any truck 

drivers employed in project 


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construction or development under 

certain Related Acts). Specifically, the 

Department proposes to amend the 

definition of ‘‘construction, prosecution, 

completion, or repair’’ in § 5.2 to 

include ‘‘transportation’’ under five 

specific circumstances, which the 

Department proposes to define, 

collectively, as ‘‘covered 

transportation’’: (1) Transportation that 

takes place entirely within a location 

meeting the definition of site of the 

work (for example, hauling materials 

from one side of a construction site to 

the other side of the same site); (2) 

transportation of portion(s) of the 

building or work between a ‘‘secondary 

construction site’’ and a ‘‘primary 

construction site’’; (3) transportation 

between a ‘‘nearby dedicated support 

site’’ and either a primary or secondary 

construction site; (4) a driver or driver’s 

assistant’s ‘‘onsite activities essential or 

incidental to offsite transportation,’’ 

discussed further below, where the 

driver or driver’s assistant’s time spent 

on the site of the work is not so 

insubstantial or insignificant that it 

cannot as a practical administrative 

matter be precisely recorded; and (5) 

any transportation and related activities, 

whether on or off the site of the work, 

by laborers and mechanics under a 

statute that extends Davis-Bacon 

coverage to all laborers and mechanics 

employed in the construction or 

development of a project. 

Items (1), (2), (3), and (5) set forth 

principles reflected in the current 

regulations, but in a clearer and more 

transparent fashion. Item (4) seeks to 

resolve the ambiguities discussed above 

regarding the coverage of on-site time by 

delivery drivers. Specifically, the 

Department proposes to explain that 

truck drivers and their assistants are 

covered for their time engaged in 

‘‘onsite activities essential or incidental 

to offsite transportation,’’ defined as 

activities by a truck driver or truck 

driver’s assistant on the site of the work 

that are essential or incidental to the 

transportation of materials or supplies 

to or from the site of the work, such as 

unloading, loading, and waiting time, 

where the driver or assistant’s time is 

not ‘‘so insubstantial or insignificant 

that it cannot as a practical 

administrative matter be precisely 

recorded.’’ 

This proposed language is identical to 

the standard the Department uses to 

describe the de minimis principle under 

the Fair Labor Standards Act. See 29 

CFR 785.47. Importantly, while the 

amount of time is relevant to this 

principle, the key inquiry is not merely 

whether the amount of time is small, but 

rather whether it is administratively 

feasible to track it, as the FLSA de 

minimis rule ‘‘applies only where there 

are uncertain and indefinite periods of 

time involved of a few seconds or 

minutes duration, and where the failure 

to count such time is due to 

considerations justified by industrial 

realities.’’ Id. (emphasis added). 

Moreover, ‘‘an employer may not 

arbitrarily fail to count as hours worked 

any part, however small, of the 

employee’s fixed or regular working 

time or practically ascertainable period 

of time he is regularly required to spend 

on duties assigned to him.’’ Id. Thus, 

under the proposed language, where a 

driver’s duties include dropping off 

and/or picking up materials on the site 

of the work, the driver must be 

compensated under the DBRA for any 

‘‘practically ascertainable’’ time spent 

on the site of the work. The Department 

anticipates that in the vast majority of 

cases, it will be feasible to record the 

amount of time a truck driver or driver’s 

assistant spends on the site of the work, 

and, therefore, that the Davis-Bacon 

labor standards will apply to any such 

time under the proposed rule. However, 

under the narrow circumstances where 

it is infeasible or impractical to measure 

a driver’s very small amount of time 

spent on the site of the work, such time 

need not be compensated under this 

proposed rule. 

This proposal is also consistent with 

the statutory ‘‘site of the work’’ 

restriction as interpreted in Midway. As 

the Department has previously 

explained, given the small amount of 

time the Midway drivers spent on-site, 

no party in the case had argued whether 

such on-site time alone could be subject 

to coverage. See 65 FR at 80275–76. 

Given that the court did not consider 

this issue, the Department does not 

understand Midway as precluding 

coverage of any time that drivers spend 

on the site of the work, ‘‘no matter how 

brief.’’ 65 FR at 80275–76. However, as 

with the FLSA, the Department 

proposes to exclude such time from 

DBRA coverage under the rare 

circumstances where it is very small in 

duration and industrial realities make it 

impossible or impractical to measure 

such time. 

e. Non-Substantive Changes for 

Conformance and Clarity 

In addition to the above changes, the 

Department proposes a number of 

revisions to the regulatory definitions 

related to the ‘‘site of the work’’ and 

‘‘material supplier’’ principle to 

conform to the above substantive 

revisions and for general clarity. The 

Department proposes to delete, from the 

definition of ‘‘building or work,’’ the 

language explaining that in general, 

‘‘[t]he manufacture or furnishing of 

materials, articles, supplies or 

equipment . . . is not a building or 

work.’’ Instead, the Department 

proposes to clarify in the definition of 

the term ‘‘construction (or prosecution, 

completion, or repair)’’ that 

‘‘construction, prosecution, completion, 

or repair’’ only includes ‘‘manufacturing 

or furnishing of materials, articles, 

supplies or equipment’’ under certain 

limited circumstances. Additionally, the 

Department proposes to remove the 

citation to Midway from the definition 

of the term ‘‘construction (or 

prosecution, completion, or repair)’’; 

although, as discussed above, some of 

the regulatory changes the Department 

has made reflect the holdings in the 

three appellate cases noted above, the 

Department does not believe it is 

necessary to cite the case in the 

regulation. 

The Department also proposes 

defining the term ‘‘development statute’’ 

to mean a statute that requires payment 

of prevailing wages under the DavisBacon labor standards to all laborers 

and mechanics employed in the 

development of a project. As noted 

above, some statutes extend DavisBacon coverage to all laborers and 

mechanics employed in the 

‘‘development’’ of a project, regardless 

of whether they are working on the site 

of the work or employed by 

‘‘contractors’’ or ‘‘subcontractors.’’ The 

current regulations reference three 

specific statutes—the United States 

Housing Act of 1937; the Housing Act 

of 1949; and the Native American 

Housing Assistance and SelfDetermination Act of 1996—that fit this 

description, but do not consistently 

reference all three. Use of the defined 

term ‘‘development statute’’ would 

improve regulatory clarity and ensure 

that the regulations to not become 

obsolete if existing statutes meeting this 

description are revised or if new statutes 

meeting this description are added. The 

Department proposes to make 

conforming changes in § 5.5 to 

incorporate this new term. 

Finally, the Department proposes 

several linguistic changes to defined 

terms in § 5.2 to improve clarity and 

readability. 

(H) Paragraph Designations 

The Department is also proposing to 

amend § 5.2 to remove paragraph 

designations of defined terms and 

instead to list defined terms in 

alphabetical order. The Department 

proposes to make conforming edits 

throughout parts 1, 3, and 5 in any 


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provisions that currently reference 

lettered paragraphs of § 5.2. 

iii. Section 5.5 Contract Provisions and 

Related Matters 

The Department proposes to remove 

the table at the end of § 5.5 related to the 

display of OMB control numbers. This 

table aids in fulfilling the requirements 

of the Paperwork Reduction Act; 

however, the Department maintains an 

inventory of OMB control numbers on 

https://www.reginfo.gov under 

‘‘Information Collection Review.’’ This 

website is updated regularly and 

interested persons are encouraged to 

consult this website for the most up-todate information. 

(A) 29 CFR 5.5(a)(1) 

The Department proposes to add 

language to § 5.5(a)(1) to state that the 

conformance process may not be used to 

split or subdivide classifications listed 

in the wage determination, and that 

conformance is appropriate only where 

the work which a laborer or mechanic 

performs under the contract is not 

within the scope of any classification 

listed on the wage determination, 

regardless of job title. This language 

reflects the principle that conformance 

is not appropriate when the work of the 

proposed classification is already 

performed by a classification on the 

wage determination. See 29 CFR 

5.5(a)(1)(ii)(A)(1). Even if workers 

perform only some of the duties of a 

classification, they are still performing 

work that is covered by the 

classification, and conformance of a 

new classification thus would be 

inappropriate. See, e.g., Fry Bros. Corp., 

1977 WL 24823, at *6 (contractor could 

not divide carpentry work between 

carpenters and carpenter tenders in 

order to pay a lower wage rate for a 

portion of the work; under the DBA it 

is not permissible to divide the work of 

a classification into several parts 

according to the contractor’s assessment 

of each worker’s skill and to pay for 

such division of the work at less than 

the specified rate for the classification). 

The proposed regulatory language is 

also in line with the principle that WHD 

must base its conformance decisions on 

the work to be performed by the 

proposed classification, not on the 

contractor’s own classification or 

perception of the workers’ skill. See 29 

CFR 5.5(a)(1)(i) (‘‘Such laborers and 

mechanics shall be paid the appropriate 

wage rate and fringe benefits . . . for the 

classification of work actually 

performed, without regard to skill 

. . . .’’); see also, e.g., Tele-Sentry Sec., 

Inc., WAB No. 87–43, 1987 WL 247062, 

at *7 (Sept. 11, 1987) (workers who 

performed duties falling within the 

electrician classification must be paid 

the electrician rate regardless of the 

employer’s classification of workers as 

laborers). The Department welcomes 

any comments on this proposal. 

The Department also proposes to 

make non-substantive revisions to 

current § 5.5(a)(1)(ii)(B) and (C) to more 

clearly describe the conformance 

request process, including by providing 

that contracting officers should submit 

the required conformance request 

information to WHD via email using a 

specified WHD email address. 

The Department has also proposed 

changes relating to the publication of 

rates for frequently conformed 

classifications. The Department’s 

proposed changes to this subsection are 

discussed above in part III.B.1.xii 

(‘‘Frequently conformed rates’’), 

together with proposed changes to § 1.3. 

The Department also proposes to add 

language to the contract clauses at 

§ 5.5(a)(1)(vi), (a)(6), and (b)(4) requiring 

the payment of interest on any 

underpayment of wages or monetary 

relief required by the contract. This 

language is consistent with and would 

be subject to the proposed discussion of 

interest in 29 CFR 5.10 (Restitution, 

criminal action), which requires that 

calculations of interest be carried out at 

the rate specified by the Internal 

Revenue Code for underpayment of 

taxes and compounded daily. 

(B) 29 CFR 5.5(a)(3) 

The Department proposes a number of 

revisions to § 5.5(a)(3) to better 

effectuate compliance and enforcement 

by clarifying and supplementing 

existing recordkeeping requirements. 

Similar changes proposed in § 5.5(c) are 

discussed here. 

As an initial matter, all references to 

employment (e.g., employee, employed, 

employing, etc.) in § 5.5(a)(3) and (c), as 

well as in § 5.6 and various other 

sections, have been revised to refer 

instead to ‘‘workers’’ or ‘‘laborers and 

mechanics.’’ These changes are 

discussed in greater detail below in 

section xxii, ‘‘Employment Relationship 

Not Required.’’ 

(1) 29 CFR 5.5(a)(3)(i) 

The Department proposes to amend 

§ 5.5(a)(3)(i) to clarify its longstanding 

interpretation and enforcement of this 

recordkeeping regulation to require 

contractors to maintain and preserve 

basic records and information, as well 

as certified payrolls. The required basic 

records include but are not limited to 

regular payroll (sometimes referred to as 

‘‘in-house’’ payroll) and additional 

records relating to fringe benefits and 

apprenticeship and training. The term 

regular payroll refers to any written or 

electronic records that the contractor 

uses to document workers’ days and 

hours worked, rate and method of 

payment, compensation, contact 

information, and other similar 

information, which provide the basis for 

the contractor’s subsequent submission 

of certified payroll. 

The Department also proposes to 

amend § 5.5(a)(3)(i) to clarify that 

regular payrolls and other basic records 

required by this section must be 

preserved for a period of at least 3 years 

after all the work on the prime contract 

is completed. In other words, even if a 

project takes more than 3 years to 

complete, contractors and 

subcontractors must keep payroll and 

basic records for at least 3 years after all 

the work on the prime contract has been 

completed. This revision expressly 

states the Department’s longstanding 

interpretation and practice concerning 

the period of time that contractors and 

subcontractors must keep payroll and 

basic records required by § 5.5(a)(3). 

The Department also proposes a new 

requirement that records required by 

§ 5.5(a)(3) and (c) must include last 

known worker telephone numbers and 

email addresses. Updating the DavisBacon regulations to require this 

additional worker contact information 

would reflect more modern and efficient 

methods of communication between 

workers and contractors, subcontractors, 

contracting agencies, and the 

Department’s authorized 

representatives. 

Another proposed revision in this 

section, as well as in § 5.5(c), clarifies 

the Department’s longstanding 

interpretation of these regulatory 

provisions that contractors and 

subcontractors must maintain records of 

each worker’s correct classification or 

classifications of work actually 

performed and the hours worked in 

each classification. See, e.g., Pythagoras 

Gen. Contracting Corp., ARB Nos. 08– 

107, 09–007, 2011 WL 1247207, at *7 

(Mar. 1, 2011) (‘‘If workers perform 

labor in more than one job 

classification, they are entitled to 

compensation at the appropriate wage 

rate for each classification according to 

the time spent in that classification, 

which time the employer’s payroll 

records must accurately reflect.’’), aff’d 

sub nom. Pythagoras Gen. Contracting 

Corp. v. U.S. Dep’t of Lab., 926 F. Supp. 

2d 490 (S.D.N.Y. 2013). Current 

regulations permit contractors and 

subcontractors to pay ‘‘[l]aborers or 

mechanics performing work in more 

than one classification . . . at the rate 

specified for each classification for the 


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88The Department does not endorse or approve 

the use of any electronic submission system or 

monitoring tool(s). Although electronic monitoring 

tools can be a useful aid to compliance, successful 

submission of certified payrolls to an electronic 

submission system with such tools does not 

guarantee that a contractor is in compliance, 

particularly since not all violations can be detected 

through electronic monitoring tools. Contractors 

that use electronic submission systems remain 

responsible for ensuring compliance with DavisBacon labor standards provisions. 

89https://www.fhwa.dot.gov/construction/cqit/ 

111204dol.cfm. 

time actually worked therein,’’ but only 

if ‘‘the employer’s payroll records 

accurately set forth the time spent in 

each classification in which work is 

performed.’’ 29 CFR 5.5(a)(1)(i). The 

proposed revisions similarly recognize 

that laborers or mechanics may perform 

work in more than one classification 

and more expressly provide that, in 

such cases, it is the obligation of 

contractors and subcontractors to 

accurately record information required 

by this section for each separate 

classification of work performed. 

By revising the language in 

§ 5.5(a)(3)(i) and (c) to require records of 

the ‘‘correct classification(s) of work 

actually performed,’’ the Department 

intends to clarify its longstanding 

interpretation that contractors and 

subcontractors must keep records of 

(and include on certified payrolls) hours 

worked segregated by each separate 

classification of work performed. It 

would continue to be the case that if a 

contractor or subcontractor fails to 

maintain such records of actual daily 

and weekly hours worked and correct 

classifications, then it must pay workers 

the rates of the classification of work 

performed with the highest prevailing 

wage and fringe benefits due. 

It is implicit—and expressly stated in 

various parts of current § 5.5—that 

records that contractors and 

subcontractors are required to maintain 

must be accurate and complete. See also 

40 U.S.C. 3145(b). The Department 

proposes to put contractors and 

subcontractors on further notice of their 

statutory, regulatory, and contractual 

obligations to keep accurate, correct, 

and complete records by adding the 

term ‘‘actually’’ in § 5.5(a)(3)(i) and (c) 

to modify ‘‘hours worked’’ and ‘‘work 

performed.’’ The current regulations 

require maintenance of records 

containing ‘‘correct classifications’’ and 

‘‘actual wages paid,’’ and this proposed 

revision is not intended to make any 

substantive change to the longstanding 

requirement that contractors and 

subcontractors keep accurate, correct, 

and complete records of all the 

information required in these sections. 

(2) 29 CFR 5.5(a)(3)(ii)–(iii) 

The Department proposes to revise 

the language in § 5.5(a)(3)(ii) and (iii) to 

expressly apply to all entities that might 

be responsible for maintaining the 

payrolls and basic records a contractor 

is required to submit weekly when a 

Federal agency is not a party to the 

contract. Currently, the specified 

records must be submitted to the 

‘‘applicant, sponsor, or owner’’ if a 

Federal agency is not a party to the 

contract. The proposed revision would 

add the language ‘‘or other entity, as the 

case may be, that maintains such 

records’’ to clarify that this requirement 

applies regardless of the role or title of 

the recipient of Federal assistance 

(through grants, loans, loan guarantees 

or insurance, or otherwise) under any of 

the statutes referenced by § 5.1. 

The Department proposes to revise 

§ 5.5(a)(3)(ii) by replacing the phrase ‘‘or 

audit of compliance with prevailing 

wage requirements’’ with ‘‘or other 

compliance action.’’ This revision 

clarifies that compliance actions may be 

accomplished by various means, not 

solely by an investigation or audit of 

compliance. A similar change is 

proposed in § 5.6. Compliance actions 

include, without limitation, full 

investigations, limited investigations, 

office audits, self-audits, and 

conciliations. This proposed revision 

expressly sets forth the Department’s 

longstanding practice and interpretation 

of this current regulatory language to 

encompass all types of Davis-Bacon 

compliance actions currently used by 

the Department, as well as any 

additional types that the Department 

may use in the future. This revision 

does not impose any new or additional 

requirements upon Federal agencies, 

applicants, sponsors, owners, or other 

entities, or on the Department, 

contractors, or subcontractors. 

The Department also proposes to add 

language to § 5.5(a)(3)(ii)(A) to codify 

the Department’s longstanding policy 

that contracting agencies and prime 

contractors can permit or require 

contractors to submit their certified 

payrolls through an electronic system, 

provided that the electronic submission 

system requires a legally valid 

electronic signature, as discussed below, 

and the contracting agency or prime 

contractor permits other methods of 

payroll submission in situations where 

the contractor is unable or limited in its 

ability to use or access the electronic 

system. See generally PWRB, DBA/ 

DBRA Compliance Principles, at 26. The 

Department encourages all contracting 

agencies to permit submission of 

certified payrolls electronically, so long 

as all of the required information and 

certification requirements are met. 

Nevertheless, contracting agencies 

determine which, if any, electronic 

submissions systems they will use, as 

certified payrolls are submitted directly 

to the contracting agencies. Electronic 

submission systems can reduce the 

recordkeeping burden and costs of 

record maintenance, and many such 

systems include compliance monitoring 

tools that may streamline the review of 

such payrolls.88

However, under the proposal, 

agencies that require the use of an 

electronic submission system would be 

required to allow contractors to submit 

certified payrolls by alternative methods 

when contractors are not able to use the 

agency’s electronic submission system 

due to limitations on the contractor’s 

ability to access the system. For 

example, if a contractor does not have 

internet access or is unable to access the 

electronic submission system due to a 

disability, the contracting agency would 

be required to allow such a contractor 

to submit certified payrolls in a manner 

that accommodates these circumstances. 

The Department also proposes a new 

sub-paragraph, § 5.5(a)(3)(ii)(D), to 

reiterate the Department’s longstanding 

policy that, to be valid, the contractor’s 

signature on the certified payroll must 

either be an original handwritten 

signature or a legally valid electronic 

signature. Both of these methods are 

sufficient for compliance with the 

Copeland Act. See WHD Ruling Letter 

(Nov. 12, 2004) (‘‘Current law 

establishes that the proper use of 

electronic signatures on certified 

payrolls . . . satisfies the requirements 

of the Copeland Act and its 

implementing regulations.’’).89 Valid 

electronic signatures include any 

electronic process that indicates 

acceptance of the certified payroll 

record and includes an electronic 

method of verifying the signer’s 

identity. Valid electronic signatures do 

not include a scan or photocopy of a 

written signature. The Department 

recognizes that electronic submission of 

certified payroll expands the ability of 

contractors and contracting agencies to 

comply with the requirements of the 

Davis-Bacon and Copeland Acts. As a 

matter of longstanding policy, the 

Department considers an original 

signature to be legally binding evidence 

of the intention of a person with regard 

to a document, record, or transaction. 

Modern technologies and evolving 

business practices are rendering the 


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distinction between original paper and 

electronic signatures nearly obsolete. 

The Department proposes to add 

paragraph (a)(3)(iii) to § 5.5 to require all 

contractors, subcontractors, and 

recipients of Federal assistance to 

maintain and preserve Davis-Bacon 

contracts, subcontracts, and related 

documents for 3 years after all the work 

on the prime contract is completed. 

These related documents include, 

without limitation, contractors’ and 

subcontractors’ bids and proposals, as 

well as amendments, modifications, and 

extensions to contracts, subcontracts, or 

agreements. 

WHD routinely requests these 

contract documents in its DBRA 

investigations. In the Department’s 

experience, contractors and 

subcontractors that comply with the 

Davis-Bacon labor standards 

requirements usually, as a good 

business practice, maintain these 

contracts and related documents. It is 

also the Department’s experience that 

Davis-Bacon contractors and 

subcontractors that do not keep their 

contracts, agreements, and related 

legally binding documents are more 

likely to disregard their obligations to 

workers and subcontractors. Adding an 

express regulatory requirement that 

contractors and subcontractors maintain 

and provide these records to WHD 

would bolster enforcement of the labor 

standards provisions of the statutes 

referenced by § 5.1. This requirement 

would not relieve contractors or 

subcontractors from complying with any 

more stringent record retention 

requirements (e.g., longer record 

retention periods). 

This proposed revision also could 

help level the playing field for 

contractors and subcontractors that 

comply with Davis-Bacon labor 

standards. Like the current 

recordkeeping requirements, noncompliance with this new proposed 

requirement may result in the 

suspension of any further payment, 

advance, or guarantee of funds and may 

also be grounds for debarment action 

pursuant to 29 CFR 5.12. 

The Department proposes to 

renumber current § 5.5(a)(3)(iii) as 

§ 5.5(a)(3)(iv). In addition, the 

Department proposes to revise this renumbered paragraph to clarify the 

records contractors and subcontractors 

are required to make available to the 

Federal agency (or applicant, sponsor, 

owner, or other entity, as the case may 

be) or the Department upon request. 

Specifically, the proposed revisions to 

§ 5.5(a)(3)(ii) and (iv), and the proposed 

new § 5.5(a)(3)(iii), expand and clarify 

the records contractors and 

subcontractors are required to make 

available for inspection, copying, or 

transcription by authorized 

representatives specified in this section. 

The Department also proposes adding a 

requirement that contractors and 

subcontractors must make available any 

other documents deemed necessary to 

determine compliance with the labor 

standards provisions of any of the 

statutes referenced by § 5.1. 

Current § 5.5(a)(3)(iii) requires 

contractors and subcontractors to make 

available the records set forth in 

§ 5.5(a)(3)(i) (Payrolls and basic 

records). The proposed revisions to renumbered § 5.5(a)(3)(iv) ensure that 

contractors and subcontractors are 

aware that they are required to make 

available not only payrolls and basic 

records, but also the payrolls actually 

submitted to the contracting agency (or 

applicant, sponsor, owner, or other 

entity, as the case may be) pursuant to 

§ 5.5(a)(3)(ii), including the Statement of 

Compliance, as well as any contracts 

and related documents required by the 

proposed § 5.5(a)(3)(iii). These records 

help WHD determine whether 

contractors are in compliance with the 

labor standards provisions of any of the 

statutes referenced by § 5.1, and what 

the appropriate back wages and other 

remedies, if any, should be. The 

Department believes that these 

clarifications will remove doubt or 

uncertainty as to whether contractors 

are required to make such records 

available to the Federal agency (or 

applicant, sponsor, owner, or other 

entity, as the case may be) or the 

Department upon request. These 

revisions make explicit the 

Department’s longstanding practice and 

do not impose any new or additional 

requirements upon a Federal agency (or 

applicant, sponsor, owner, or other 

entity, as the case may be). 

The new or additional recordkeeping 

requirements in the proposed revisions 

to § 5.5(a)(3) likely do not impose an 

undue burden on contractors or 

subcontractors, as they likely already 

maintain worker telephone numbers 

and email addresses and may already be 

required by contracting agencies to keep 

contracts and related documents. These 

revisions also enhance the Department’s 

ability to provide education, outreach 

and compliance assistance to 

contractors and subcontractors awarded 

contracts subject to the Davis-Bacon 

labor standards provisions. 

Finally, the Department in renumbered § 5.5(a)(3)(iv)(B) proposes to 

add a sanction for contractors and other 

persons that fail to submit the required 

records in § 5.5(a)(3) or make those 

records available to WHD within the 

time WHD requests that the records be 

produced. Specifically, the Department 

proposes that contractors that fail to 

comply with WHD record requests will 

be precluded from introducing as 

evidence in an administrative 

proceeding under 29 CFR part 6 any of 

the required records that were not 

provided or made available to WHD. 

The Department proposes this sanction 

to enhance enforcement of 

recordkeeping requirements and 

encourage cooperation with its 

investigations and other compliance 

actions. The proposal provides that 

WHD will take into consideration a 

reasonable request from the contractor 

or person for an extension of the time 

for submission of records. WHD will 

determine the reasonableness of the 

request and may consider, among other 

things, the location of the records and 

the volume of production. 

(C) 29 CFR 5.5(a)(4) Apprentices 

The Department proposes to 

reorganize § 5.5(a)(4)(i) so that each of 

the four apprentice-related topics it 

addresses—rate of pay, fringe benefits, 

apprenticeship ratios, and reciprocity— 

are more clearly and distinctly 

addressed. These proposed revisions are 

not substantive. In addition, the 

Department proposes to revise the 

subsection of § 5.5(a)(4)(i) regarding 

reciprocity to better align with the 

purpose of the DBA and the 

Department’s Employment and Training 

Administration (ETA) regulation at 29 

CFR 29.13(b)(7) regarding the applicable 

apprenticeship ratios and wage rates 

when work is performed by apprentices 

in a different State than the State in 

which the apprenticeship program was 

originally registered. 

Section 5.5(a)(4)(i) provides that 

apprentices may be paid less than the 

prevailing rate for the work they 

perform if they are employed pursuant 

to, and individually registered in, a 

bona fide apprenticeship program 

registered with ETA’s Office of 

Apprenticeship (OA) or with a State 

Apprenticeship Agency (SAA) 

recognized by the OA. In other words, 

in order to employ apprentices on a 

Davis-Bacon project at lower rates than 

the prevailing wage rates applicable to 

journeyworkers, contractors must 

ensure that the apprentices are 

participants in a federally registered 

apprenticeship program or a State 

apprenticeship program registered by a 

recognized SAA. Any worker listed on 

a payroll at an apprentice wage rate who 

is not employed pursuant to and 

individually registered in such a bona 

fide apprenticeship program must be 

paid the full prevailing wage listed on 


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90Proposed Rule, Labor Standards Provisions 

Applicable to Contracts Covering Federally 

Financed and Assisted Construction, 44 FR 77080, 

77085 (Dec. 28, 1979). 

91Final Rule, Labor Standards Provisions 

Applicable to Contracts Covering Federally 

Financed and Assisted Construction, 46 FR 4380, 

4383 (Jan. 16, 1981). 

92 Id. The 1981 final rule was suspended, but the 

apprenticeship portability provision in § 5.5 was 

ultimately proposed and issued unchanged by a 

final rule issued in 1982. See Final Rule, Labor 

Standards Provisions Applicable to Contracts 

Covering Federally Financed and Assisted 

Construction, 47 FR 23658, 23669 (May 28, 1982). 

93See Apprenticeship Programs, Labor Standards 

for Registration, Amendment of Regulations Notice 

of Proposed Rulemaking, 72 FR 71020 (Dec. 13, 

2007). 

94 Id. at 71026. 

95 Id. 

96Final Rule, Apprenticeship Programs, Labor 

Standards for Registration, Amendment of 

Regulations, 73 FR 64402, 64419 (Oct. 29, 2008). 

97 Id. 98 Id. at 64420. See 29 CFR 29.13(b)(7). 

the applicable wage determination for 

the classification of work performed. 

Additionally, any apprentice performing 

work on the site of the work in excess 

of the ratio permitted under the 

registered program must be paid not less 

than the full wage rate listed on the 

applicable wage determination for the 

classification of work performed. 

In its current form, § 5.5(a)(4)(i) 

further provides that when a contractor 

performs construction on a project in a 

locality other than the one in which its 

program is registered, the ratios and 

wage rates (expressed in percentages of 

the journeyworker’s hourly rate) 

specified in the contractor’s or 

subcontractor’s registered program will 

be observed. Under this provision, the 

ratios and wage rates specified in a 

contractor’s or subcontractor’s registered 

program are ‘‘portable,’’ such that they 

apply not only when the contractor 

performs work in the locality in which 

it was originally registered (sometimes 

referred to as the contractor’s ‘‘home 

State’’) but also when a contractor 

performs work on a project located in a 

different State (sometimes referred to as 

the ‘‘host State’’). In contrast, as part of 

a 1979 NPRM, the Department proposed 

essentially the opposite approach, i.e., 

that apprentice ratios and wage rates 

would not be portable and that, instead, 

when a contractor performs 

construction on a project in a locality 

other than the one in which its program 

is registered, ‘‘the ratios and wage rates 

(expressed in percentages of the 

journeyman’s hourly rate) specified in 

plan(s) registered for that locality shall 

be observed.’’ 90

In adopting the current approach in a 

final rule issued in 1981, the 

Department noted that several 

commenters had objected to the 

proposal to apply the apprentice ratios 

and wage rates in the location where 

construction is performed, rather than 

the ratios and wage rates applicable in 

the location in which the program is 

registered.91 The Department explained 

that, in light of these comments, ‘‘[u]pon 

reconsideration, we decided that to 

impose different plans on contractors, 

many of which work in several locations 

where there could be differing 

apprenticeship standards, would be 

adding needless burdens to their 

business activities.’’ 92

In 2008, ETA amended its 

apprenticeship regulations in a manner 

that is seemingly in tension with the 

1981 final rule’s approach to DavisBacon apprenticeship ‘‘portability.’’ 

Specifically, in December 2007, ETA 

issued an NPRM to revise the agency’s 

labor standards for the registration of 

apprenticeship programs regulations.93

One of the NPRM proposals was to 

expand the provisions of then-existing 

29 CFR 29.13(b)(8), which at that time 

provided that in order to be recognized 

by ETA, an SAA must grant reciprocal 

recognition to apprenticeship programs 

and standards registered in other 

States—except for apprenticeship 

programs in the building and 

construction trades.94 ETA proposed to 

move the provision to 29 CFR 

29.13(b)(7) and to remove the exception 

for the building and construction 

trades.95 In the preamble to the final 

rule issued on October 29, 2008, ETA 

noted that several commenters had 

expressed concern that it was ‘‘unfair 

and economically disruptive to allow 

trades from one State to use the pay 

scale from their own State to bid on 

work in other States, particularly for 

apprentices employed on projects 

subject to the Davis-Bacon Act.’’ 96 The 

preamble explained that ETA ‘‘agree[d] 

that the application of a home State’s 

wage and hour and apprentice ratios in 

a host State could confer an unfair 

advantage to an out-of-state contractor 

bidding on a Federal public works 

project.’’ 97 Further, the preamble noted 

that, for this reason, ETA’s negotiations 

of memoranda of understanding with 

States to arrange for reciprocal approval 

of apprenticeship programs in the 

building and construction trades have 

consistently required application of the 

host State’s wage and hour and 

apprenticeship ratio requirements. 

Accordingly, the final rule added a 

sentence to 29 CFR 29.13(b)(7) to clarify 

that the program sponsor seeking 

reciprocal approval must comply with 

the host State’s wage and hour and 

apprentice ratio standards.98

In order to better harmonize the 

Davis-Bacon regulations and ETA’s 

apprenticeship regulations, the 

Department proposes to revise 

§ 5.5(a)(4)(i) to reflect that contractors 

employing apprentices to work on a 

DBRA project in a locality other than 

the one in which the apprenticeship 

program was originally registered must 

adhere to the apprentice wage rate and 

ratio standards of the project locality. As 

noted above, the general rule in 

§ 5.5(a)(4)(i) is that contractors may pay 

less than the prevailing wage rate for the 

work performed by an apprentice 

employed pursuant to and individually 

registered in a bona fide apprenticeship 

program registered with ETA or an OArecognized SAA. Under ETA’s 

regulation at 29 CFR 29.13(b)(7), if a 

contractor has an apprenticeship 

program registered for one State but 

wishes to employ apprentices to work 

on a project in a different State with an 

SAA, the contractor must seek and 

obtain reciprocal approval from the 

project State SAA and adhere to the 

wage rate and ratio standards approved 

by the project State SAA. Accordingly, 

upon receiving reciprocal approval, the 

apprentices in such a scenario would be 

considered to be employed pursuant to 

and individually registered in the 

program in the project State, and the 

terms of that reciprocal approval would 

apply for purposes of the DBRA. The 

Department’s proposed revision 

requiring contractors to apply the ratio 

and wage rate requirements from the 

relevant apprenticeship program for the 

locality where the laborers and 

mechanics are working therefore better 

aligns with ETA’s regulations on 

recognition of SAAs and is meant to 

eliminate potential confusion that could 

result for Davis-Bacon contractors 

subject to both ETA and WHD rules 

regarding apprentices. The proposed 

revision also better comports with the 

DBA’s statutory purpose to eliminate 

the unfair competitive advantage 

conferred on contractors from outside of 

a geographic area bidding on a Federal 

construction contract based on lower 

wage rates (and, in the case of 

apprentices, differing ratios of 

apprentices paid a percentage of the 

journeyworker rate for the work 

performed) than those that prevail in the 

location of the project. 

The Department notes that multiple 

apprenticeship programs may be 

registered in the same State, and that 

such programs may cover different 

localities of that State and require 


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99See Final Rule, Labor Standards Applicable to 

Contracts Covering Federally Financed and 

Assisted Construction, 36 FR 19304 (Oct. 2, 1971) 

(defining trainees as individuals working under a 

training program certified by ETA’s predecessor 

agency, the Manpower Administration’s Bureau of 

Apprenticeship and Training). 

100The new language also clarifies that, 

consistent with the proposed language in § 5.10, 

such responsibility also extends to any interest 

assessed on backwages or other monetary relief. 

different apprenticeship wage rates and 

ratios within those separate localities. If 

apprentices registered in a program 

covering one State locality will be doing 

apprentice work in a different locality of 

the same State, and different apprentice 

wage and ratio standards apply to the 

two different localities, the proposed 

rule would require compliance with the 

apprentice wage and ratio standards 

applicable to the locality where the 

work will be performed. The 

Department welcomes comments as to 

whether adoption of a consistent rule, 

applicable regardless of whether the 

project work is performed in the same 

State as the registered apprenticeship 

program, best aligns with the statutory 

purpose of the DBA and would likely be 

less confusing to apply. 

Lastly, the Department proposes to 

remove the regulatory provisions 

regarding trainees currently set out in 

§§ 5.2(n)(2) and 5.5(a)(4)(ii), and to 

remove the references to trainees and 

training programs throughout parts 1 

and 5. Current § 5.5(a)(4)(ii) permits 

‘‘trainees’’ to work at less than the 

predetermined rate for the work 

performed, and § 5.2(n)(2) defines a 

trainee as a person registered and 

receiving on-the-job training in a 

construction occupation under a 

program approved and certified in 

advance by ETA as meeting its 

standards for on-the-job training 

programs. Sections 5.2(n)(2) and 

5.5(a)(4)(ii) were originally added to the 

regulations over 50 years ago.99

However, ETA no longer reviews or 

approves on-the-job training programs 

and, relatedly, WHD has found that 

§ 5.5(a)(4)(ii) is seldom if ever 

applicable to DBRA contracts. The 

Department therefore proposes to 

remove the language currently in 

§§ 5.2(n)(2) and 5.5(a)(4)(ii), and to 

retitle § 5.5(a)(4) ‘‘Apprentices.’’ The 

Department also proposes a minor 

revision to proposed § 5.5(a)(4)(ii) to 

align with the gender-neutral term of 

‘‘journeyworker’’ used by ETA in its 

apprenticeship regulations. The 

Department also proposes to rescind 

and reserve §§ 5.16 and 5.17, as well as 

delete references to such trainees and 

training programs in §§ 1.7, 5.2, 5.5, 5.6, 

and 5.15. The Department encourages 

comments on this proposal, including 

any relevant information about the use 

of training programs in the construction 

industry. 

(D) Flow-Down Requirements in 

§§ 5.5(a)(6) and 5.5(b)(4) 

The Department proposes to add 

clarifying language to the DBRA- and 

CWHSSA-specific contract clause 

provisions at § 5.5(a)(6) and (b)(4), 

respectively. Currently, these contract 

clauses contain explicit contractual 

requirements for prime contractors and 

upper-tier subcontractors to flow-down 

the required contract clauses into their 

contracts with lower-tier subcontractors. 

The clauses also explicitly state that 

prime contractors are ‘‘responsible for 

the compliance by any subcontractor or 

lower tier subcontractor.’’ 29 CFR 

5.5(a)(6) and (b)(4). The Department’s 

proposed rule would affect these 

contract clauses in several ways. 

(1) Flow-Down of Wage Determinations 

The Department proposes adding 

clarifying language to § 5.5(a)(6) that the 

flow-down requirement also requires 

the inclusion in such subcontracts of the 

appropriate wage determination(s). 

(2) Application of the Definition of 

‘‘Prime Contractor’’ 

As noted above in the discussion of 

§ 5.2, the Department is proposing to 

codify a definition of ‘‘prime 

contractor’’ in § 5.2 that would include 

controlling shareholders or members, 

joint venturers or partners, and general 

contractors or others to whom all or 

substantially all of the construction or 

Davis-Bacon labor standards compliance 

duties have been delegated under the 

prime contract. These entities would 

therefore also be ‘‘responsible’’ under 

§ 5.5(a)(6) and (b)(4) for the same 

violations as the legal entity that signed 

the prime contract. The proposed 

change is intended to ensure that 

contractors do not interpose singlepurpose corporate entities as the 

nominal ‘‘prime contractor’’ in order to 

escape liability or responsibility for the 

contractors’ Davis-Bacon labor 

standards compliance duties. 

(3) Responsibility for the Payment of 

Unpaid Wages 

The proposal includes new language 

underscoring that being ‘‘responsible for 

. . . compliance’’ means the prime 

contractor has the contractual obligation 

to cover any unpaid wages or other 

liability for contractor or subcontractor 

violations of the contract clauses. This 

is consistent with the Department’s 

longstanding interpretation of this 

provision. See M.A. Bongiovanni, Inc., 

WAB No. 91–08, 1991 WL 494751, at *1 

(Apr. 19, 1991); see also All Phase Elec. 

Co., WAB No. 85–18, 1986 WL 193105, 

at *1–2 (June 18, 1986) (withholding 

contract payments from the prime 

contractor for subcontractor employees 

even though the labor standards had not 

been flowed down into the 

subcontract).100 Because such liability 

for prime contractors is contractual, it 

represents strict liability and does not 

require that the prime contractor knew 

of or should have known of the 

subcontractors’ violations. Bongiovanni, 

1991 WL 494751, at *1. As the WAB 

explained in Bongiovanni, this rule 

‘‘serves two vital functions.’’ Id. First, 

‘‘it requires the general contractor to 

monitor the performance of the 

subcontractor and thereby effectuates 

the Congressional intent embodied in 

the Davis-Bacon and Related Acts to an 

extent unattainable by Department of 

Labor compliance efforts.’’ Id. Second, 

‘‘it requires the general contractor to 

exercise a high level of care in the initial 

selection of its business associates.’’ Id. 

(4) Potential for Debarment for Disregard 

of Responsibility 

The proposed new language clarifies 

that underpayments of a subcontractor’s 

workers may in certain circumstances 

subject the prime contractor itself to 

debarment for violating the 

responsibility provision. Under the 

existing regulations, there is no 

reference in the § 5.5(a)(6) or (b)(4) 

responsibility clauses to a potential for 

debarment. However, the existing 

§ 5.5(a)(7) does currently explain that 

‘‘[a] breach of the contract clauses in 29 

CFR 5.5’’—which thus includes the 

responsibility clause at § 5.5(a)(6)— 

‘‘may be grounds . . . for debarment[.]’’ 

29 CFR 5.5(a)(7). The proposed new 

language would provide more explicit 

notice (in § 5.5(a)(6) and (b)(4) 

themselves) of this potential that a 

prime contractor may be debarred where 

there are violations on the contract 

(including violations perpetrated by a 

subcontractor) and the prime contractor 

has failed to take responsibility for 

compliance. 

In providing this additional notice of 

the potential for debarment, the 

Department does not intend to change 

the core standard for when a prime 

contractor or upper tier subcontractor 

may be debarred for the violations of a 

lower tier subcontractor. The potential 

for debarment for a violation of the 

responsibility requirement, unlike the 

responsibility for back wages, is not 

currently subject to a strict liability 


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101See also Martell Constr. Co., ALJ No. 86–DBA– 

32, 1986 WL 193129, at *9 (DOL OALJ Aug. 7, 

1986), aff’d, WAB No. 86–26, 1987 WL 247045 (July 

10, 1987). In Martell, the prime contractor had 

failed to flow down the required contract clauses 

and investigate or question irregular payroll records 

submitted by subcontractors. The ALJ explained 

that the responsibility clause in § 5.5(a)(6) places a 

burden on the prime contractor ‘‘to act on or 

investigate irregular or suspicious situations as 

necessary to assure that its subcontractors are in 

compliance with the applicable sections of the 

regulations.’’ 1986 WL 193129, at *9. 

102 In AAM 69, the Department noted that ‘‘the 

failure of the prime contractor or a subcontractor to 

incorporate the labor standards provisions in its 

subcontracts may, under certain circumstances, be 

a serious violation of the contract requirements 

which would warrant the imposition of sanctions 

under either the Davis-Bacon Act or our 

Regulations.’’ 

103Cf. Am. Soc’y of Mech. Eng’rs, Inc. v. 

Hydrolevel Corp., 456 U.S. 556, 572–73 (1982) (‘‘[A] 

rule that imposes liability on the standard-setting 

organization—which is best situated to prevent 

antitrust violations through the abuse of its 

reputation—is most faithful to the congressional 

intent that the private right of action deter antitrust 

violations.’’). The same principle supports the 

Department’s proposed codification of the 

definition of ‘‘prime contractor.’’ Where the 

nominal prime contractor is a single-purpose entity 

with few actual workers, and it contracts with a 

general contractor for all relevant aspects of 

construction and monitoring of subcontractors, the 

most reasonable enforcement structure would place 

liability on both the nominal prime contractor and 

the general contractor that actually has the staffing, 

experience, and mandate to assure compliance on 

the job site. 

standard. Rather, in the cases in which 

prime contractors have been debarred 

for the underpayments of 

subcontractors’ workers, they were 

found to have some level of intent that 

reflected a disregard of their own 

obligations. See, e.g., H.P. Connor & Co., 

WAB No. 88–12, 1991 WL 494691, at *2 

(Feb. 26, 1991) (affirming ALJ’s 

recommendation to debar prime 

contractor for ‘‘run[ning] afoul’’ of 29 

CFR 5.5(a)(6) because of its ‘‘knowing or 

grossly negligent participation in the 

underpayment’’ of the workers of its 

subcontractors).101

(5) The Department Does Not Intend To 

Change This Standard. Responsibility 

and Liability of Upper-Tier 

Subcontractors 

The proposed language in § 5.5(a)(6) 

and (b)(4) would also eliminate 

confusion regarding the responsibility 

and liability of upper-tier 

subcontractors. The existing language in 

§ 5.5(a)(6) and (b)(4) creates express 

contractual responsibility of upper-tier 

subcontractors to flow down the 

required contract clauses to bind their 

lower-tier subcontractors. See § 5.5(a)(6) 

(stating that the prime contractor ‘‘or 

subcontractor’’ must insert the required 

clauses in ‘‘any subcontracts’’); 

§ 5.5(b)(4) (stating that the flow-down 

clause must ‘‘requir[e] the 

subcontractors to include these clauses 

in any lower tier subcontracts’’). The 

Department has long recognized that 

with this responsibility comes the 

potential for sanctions against upper-tier 

subcontractors that fail to properly flow 

down the contract clauses. See AAM 69 

(DB–51), at 2 (July 29, 1966).102

The current contract clauses in 

§ 5.5(a)(6) and (b)(4) do not expressly 

identify further contractual 

responsibility or liability of upper-tier 

subcontractors for violations that are 

committed against the employees of 

their lower-tier subcontractors. 

However, although the Department has 

not had written guidance to this effect, 

it has in many circumstances held 

upper-tier subcontractors responsible 

for the failure by their own lower-tier 

subcontractors to pay required 

prevailing wages. See, e.g., Ray Wilson 

Co., ARB No. 02–086, 2004 WL 384729, 

at *6 (Feb. 27, 2004); Norsaire Sys., Inc., 

WAB No. 94–06, 1995 WL 90009, at *1 

(Feb. 28, 1995) 

In Ray Wilson Co., for example, the 

ARB upheld the debarment of an uppertier subcontractor because of its lowertier subcontractor’s misclassification of 

workers. As the ARB held, the highertier subcontractor had an ‘‘obligation[ ] 

to be aware of DBA requirements and to 

ensure that its lower-tier subcontractor 

. . . properly complied with the wage 

payment and record keeping 

requirements on the project.’’ 2004 WL 

384729, at *10. The Department sought 

debarment because the upper-tier 

subcontractor had discussed the 

misclassification scheme with the 

lower-tier subcontractor and thus 

‘‘knowingly countenanced’’ the 

violations. Id. at *8. 

The Department proposes in this 

rulemaking to clarify that upper-tier 

subcontractors (in addition to prime 

contractors) may be responsible for the 

violations committed against the 

employees of lower-tier subcontractors. 

The proposal would clarify that this 

responsibility would require upper-tier 

subcontractors to pay back wages on 

behalf of their lower-tier subcontractors 

and subject upper-tier subcontractors to 

debarment in appropriate circumstances 

(i.e., where the lower-tier 

subcontractor’s violation reflects a 

disregard of obligations by the uppertier subcontractor to workers of their 

subcontractors). The proposal would 

include, in the § 5.5(a)(6) and (b)(4) 

contract clauses, language adding that 

‘‘any subcontractor[ ] responsible’’ for 

the violations is also liable for back 

wages and potentially subject to 

debarment. This language is intended to 

place liability not only on the lower-tier 

subcontractor that is directly employing 

the worker who does not receive 

required wages, but also on the uppertier subcontractors that may also have 

disregarded their obligations to be 

responsible for compliance. 

With this proposal, the Department 

does not intend to place the same strict 

liability responsibility on all upper-tier 

subcontractors as, discussed above, the 

existing language already places on 

prime contractors for lower-tier 

subcontractors’ back wages. Rather, the 

new proposed language is intended to 

clarify that, in appropriate 

circumstances, as in Ray Wilson Co., 

upper-tier subcontractors may be held 

responsible—both subjecting them to 

possible debarment and requiring them 

to pay back wages jointly and severally 

with the prime contractor and the 

lower-tier subcontractor that directly 

failed to pay the prevailing wages. 

A key principle in enacting regulatory 

requirements is that liability should, to 

the extent possible, be placed on the 

entity that best can control whether or 

not a violation occurs. See Bongiovanni, 

1991 WL 494751, at *1.103 For this 

reason, the Department proposes 

language assigning liability to upper-tier 

subcontractors, who have the ability to 

choose the lower-tier subcontractors 

they hire, notify lower-tier 

subcontractors of the prevailing wage 

requirements of the contract, and take 

action if they have any reason to believe 

there may be compliance issues. By 

clarifying that upper-tier subcontractors 

may be liable under appropriate 

circumstances—but are not strictly 

liable as are prime contractors—the 

Department believes that it has struck 

an appropriate balance that is consistent 

with historical interpretation, the 

statutory language of the DBA, and the 

feasibility and efficiency of future 

enforcement. 

(E) 29 CFR 5.5(d)—Incorporation by 

Reference 

Proposed new section 5.5(d) clarifies 

that, notwithstanding the continued 

requirement that agencies incorporate 

contract clauses and wage 

determinations ‘‘in full’’ into a covered 

contract, the clauses and wage 

determinations are equally effective if 

they are incorporated by reference. The 

Department’s proposal for this 

subsection is discussed further below in 

part III.B.3.xx (‘‘Post-award 

determinations and operation-of-law’’), 

together with proposed changes to 

§§ 1.6(f), 5.5(e), and 5.6. 

(F) 29 CFR 5.5(e)—Operation of Law 

In a new section at § 5.5(e), the 

Department proposes language making 

effective by operation of law a contract 


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104See 2020 GAO Report, note 12, supra, at 6 

tbl.1, for descriptions of WHD Compliance Actions. 

clause or wage determination that was 

wrongly omitted from the contract. The 

Department’s proposal for this 

subsection is discussed below in part 

III.B.3.xx (‘‘Post-award determinations 

and operation-of-law’’), together with 

proposed changes to §§ 1.6(f), 5.5(d), 

and 5.6. 

iv. Section 5.6 Enforcement 

(A) 29 CFR 5.6(a)(1) 

The Department proposes to revise 

§ 5.6(a)(1) by renumbering the existing 

regulatory text § 5.6(a)(1)(i), and adding 

an additional sub-section, § 5.6(a)(1)(ii), 

to include a provision clarifying that 

where a contract is awarded without the 

incorporation of the required DavisBacon labor standards clauses required 

by § 5.5, the Federal agency must 

incorporate the clauses or require their 

incorporation. The Department’s 

proposal for this subsection is discussed 

further below in part III.B.3.xx (‘‘Postaward determinations and operation-oflaw’’), together with proposed changes 

to §§ 1.6(f) and 5.5(e). 

(B) 29 CFR 5.6(a)(2) 

The Department proposes to amend 

§ 5.6(a)(2) to reflect the Department’s 

longstanding practice and interpretation 

that certified payrolls required pursuant 

to § 5.5(a)(3)(ii) may be requested—and 

Federal agencies must produce such 

certified payrolls—regardless of whether 

the Department has initiated an 

investigation or other compliance 

action. The term ‘‘compliance action’’ 

includes, without limitation, full 

investigations, limited investigations, 

office audits, self-audits, and 

conciliations.104 The Department further 

proposes revising this paragraph to 

clarify that, in those instances in which 

a Federal agency does not itself 

maintain such certified payrolls, it is the 

responsibility of the Federal agency to 

ensure that those records are provided 

to the Department upon request, either 

by obtaining and providing the certified 

payrolls to the Department, or by 

requiring the entity maintaining those 

certified payrolls to provide the records 

directly to the Department. 

The Department also proposes to 

replace the phrase ‘‘payrolls and 

statements of compliance’’ with 

‘‘certified payrolls’’ to continue to more 

clearly distinguish between certified 

payrolls and regular payroll and other 

basic records and information that the 

contractor is also required to maintain 

under § 5.5(a)(3), as discussed above. 

First, the proposed revisions are 

intended to clarify that an investigation 

or other compliance action is not a 

prerequisite to the Department’s ability 

to obtain from the Federal agency 

certified payrolls submitted pursuant to 

§ 5.5(a)(3)(ii). Second, the proposed 

revisions are intended to remove any 

doubt or uncertainty that the Federal 

agency has an obligation to produce 

such certified payrolls, even in those 

circumstances in which it may not be 

the entity actually maintaining the 

requested certified payrolls. These 

revisions would make explicit the 

Department’s longstanding practice and 

interpretation of this provision. 

These proposed revisions would not 

place any new or additional 

requirements or recordkeeping burdens 

on contracting agencies, as they are 

already required to maintain these 

certified payrolls and provide them to 

the Department upon request. 

These proposed revisions enhance the 

Department’s ability to provide 

compliance assistance to various 

stakeholders, including Federal 

agencies, contractors, subcontractors, 

sponsors, applicants, owners, or other 

entities awarded contracts subject to the 

provisions of the DBRA. Specifically, 

these proposed revisions would 

facilitate the Department’s review of 

certified payrolls on covered contracts 

where the Department has not initiated 

any specific compliance action. 

Conducting such reviews promotes the 

proper administration of the DBRA 

because, in the Department’s 

experience, such reviews often enable 

the Department to identify compliance 

issues and circumstances in which 

additional outreach and education 

would be beneficial. 

(C) 29 CFR 5.6(a)(3)–(5), 5.6(b) 

The Department proposes revisions to 

§ 5.6(a)(3) and (5) and (b), similar to the 

above-mentioned proposed changes to 

§ 5.6(a)(2), to clarify that an 

investigation is only one method of 

assuring compliance with the labor 

standards clauses required by § 5.5 and 

the applicable statutes referenced in 

§ 5.1. The Department proposes to 

supplement the term ‘‘investigation,’’ 

where appropriate, with the phrase ‘‘or 

other compliance actions.’’ The 

proposed revisions align with all the 

types of compliance actions currently 

used by the Department, as well as any 

additional categories that the 

Department may use in the future. 

These revisions make explicit the 

Department’s longstanding practice and 

interpretation of these provisions and 

do not impose any new or additional 

requirements upon a Federal agency. 

Proposed revisions to § 5.6(a)(3) 

clarify the records and information that 

contracting agencies should include in 

their DBRA investigations. These 

proposed changes conform to proposed 

changes in § 5.5(a)(3). 

The Department also proposes 

updating current § 5.6(a)(5) to reflect its 

practice of redacting portions of 

confidential statements of workers or 

other informants that would tend to 

reveal those informants’ identities. 

Finally, the Department proposes 

renumbering current § 5.6(a)(5) as a 

stand-alone new paragraph § 5.6(c). This 

proposed change is made to 

emphasize—without making substantive 

changes—that this regulatory provision 

mandating protection of information 

that identifies or would tend to identity 

confidential sources, or constitute an 

unwarranted invasion of personal 

privacy, applies to both the 

Department’s and other agencies’ 

confidential statements and other 

related documents. 

v. Section 5.10 Restitution, Criminal 

Action 

To correspond with proposed 

language in the underlying contract 

clauses, the Department proposes to add 

references to monetary relief and 

interest to the description of restitution 

in § 5.10, as well as an explanation of 

the method of computation of interest 

applicable generally to any 

circumstance in which there has been 

an underpayment of wages under a 

covered contract. 

The Department has proposed new 

anti-retaliation contract clauses at 

§ 5.5(a)(11) and (b)(5), along with a 

related section of the regulations at 

§ 5.18. Those clauses and section 

provide for the provision of monetary 

relief that would include, but not be 

limited to, back wages. Reference to this 

relief in § 5.10 is proposed to 

correspond to those proposed new 

clauses and section. For further 

discussion of those proposals, see part 

III.B.3.xix (‘‘Anti-Retaliation’’). 

The reference to interest in § 5.10 is 

similarly intended to correspond to 

proposed new language requiring the 

payment of interest on any 

underpayment of wages in the contract 

clauses at § 5.5(a)(1)(vi), (a)(2) and (6), 

and (b)(2) through (4), and on any other 

monetary relief for violations of the 

proposed anti-retaliation clauses. The 

existing Davis-Bacon regulations and 

contract clauses do not specifically 

provide for the payment of interest on 

back wages. The ARB and the 

Department’s administrative law judges, 

however, have held that interest 

calculated to the date of the 

underpayment or loss is generally 

appropriate where back wages are due 


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105See also Greater Mo. Med. Pro-care Providers, 

Inc., ARB No. 12–015, 2014 WL 469269, at *18 (Jan. 

29, 2014) (approving of pre-judgment and postjudgment interest on back pay award for H–1B visa 

cases under the Immigration and Nationality Act 

(INA)), aff’d sub nom. Greater Mo. Med. Pro-care 

Providers, Inc. v. Perez, No. 3:14–CV–05028, 2014 

WL 5438293 (W.D. Mo. Oct. 24, 2014), rev‘d on 

other grounds, 812 F.3d 1132 (8th Cir. 2015). 

106The Department does not propose any 

requirement of interest on assessments of liquidated 

damages under the CWHSSA clause at § 5.5(b)(2). 

Under CHWSSA, unlike the FLSA, there is no 

requirement that liquidated damages be provided to 

affected workers. Contracting agencies can provide 

liquidated damages that they recover to employees, 

but they are also allowed to retain liquidated 

damages to compensate themselves for the costs of 

enforcement or otherwise for their own benefit. See 

40 U.S.C. 3702(b)(2)(B), 3703(b)(2)(A). 

under other similar remedial employee 

protection statutes enforced by the 

Department. See, e.g., Lawn Restoration 

Serv. Corp., No. 2002–SCA–00006, slip 

op. at 74 (OALJ Dec. 2, 2003) (awarding 

prejudgment interest under the SCA).105

Under the DBRA, as in the INA and SCA 

and other similar statutes, an 

assessment of interest on back wages 

and other monetary relief will ensure 

that the workers Congress intended to 

protect from substandard wages will 

receive the full compensation that they 

were owed under the contract.106

The proposed language establishes 

that interest will be calculated from the 

date of the underpayment or loss, using 

the interest rate applicable to 

underpayment of taxes under 26 U.S.C. 

6621, and will be compounded daily. 

Various OSHA whistleblower 

regulations use the tax underpayment 

rate and daily compounding because 

that accounting best achieves the makewhole purpose of a back-pay award. See 

Procedures for the Handling of 

Retaliation Complaints Under Section 

806 of the Sarbanes-Oxley Act of 2002, 

as Amended, Final Rule, 80 FR 11865, 

11872 (Mar. 5, 2015). 

vi. Section 5.11 Disputes Concerning 

Payment of Wages 

The Department proposes minor 

revisions to § 5.11(b)(1) and (c)(1), to 

clarify that where there is a dispute of 

fact or law concerning payment of 

prevailing wage rates, overtime pay, or 

proper classification, the Administrator 

may notify the affected contractors and 

subcontractors, if any, of the 

investigation findings by means other 

than registered or certified mail, so long 

as those other means would normally 

assure delivery. Examples of such other 

means include, but are not limited to, 

email to the last known email address, 

delivery to the last known address by 

commercial courier and express 

delivery services, or by personal service 

to the last known address. As has been 

recently highlighted during the COVID– 

19 pandemic, while registered or 

certified mail may generally be a 

reliable means of delivery, in some 

circumstances other delivery methods 

may be just as reliable or even more 

successful at assuring delivery. These 

revisions allow the Department to 

choose methods to ensure that the 

necessary notifications are delivered to 

the affected contractors and 

subcontractors. 

In addition, the Department proposes 

similar changes to allow contractors and 

subcontractors to also provide their 

response, if any, to the Administrator’s 

notification of the investigative findings 

by any means that would normally 

assure delivery. The Department also 

proposes replacing the term ‘‘letter’’ 

with the term ‘‘notification’’ in this 

section, since the notification of 

investigation findings may be delivered 

by letter or other means, such as email. 

Similarly, the Department proposes to 

replace the term ‘‘postmarked’’ with 

‘‘sent’’ to reflect that other methods of 

delivery may be confirmed by other 

means, such as by the date stamp on an 

email or the delivery confirmation 

provided by a commercial delivery 

service. 

For additional discussion related to 

§ 5.11, see part III.B.3.xxi 

(‘‘Debarment’’). 

vii. Section 5.12. Debarment 

Proceedings 

The Department proposes minor 

revisions to § 5.12(b)(1) and 

(d)(2)(iv)(A), to clarify that the 

Administrator may notify the affected 

contractors and subcontractors, if any, 

of the investigation findings by means 

other than registered or certified mail, 

so long as those other means would 

normally assure delivery. As discussed 

above in reference to identical changes 

proposed to § 5.11, these proposed 

revisions will allow the Department to 

choose the most appropriate method to 

confirm that the necessary notifications 

reach their recipients. The Department 

proposes similar changes to allow the 

affected contractors or subcontractors to 

use any means that would normally 

assure delivery when making their 

response, if any, to the Administrator’s 

notification. 

The Department also proposes a slight 

change to § 5.12(b)(2), to state that the 

Administrator’s findings will be final if 

no hearing is requested within 30 days 

of the date of the Administrator’s 

notification, as opposed to the current 

language, which states that the 

Administrator’s findings shall be final if 

no hearing is requested within 30 days 

of receipt of the Administrator’s 

notification. This proposed change 

would align the time period available 

for requesting a hearing in § 5.12(b)(2) 

with similar requirements in § 5.11 and 

other paragraphs in § 5.12, which state 

that such requests must be made within 

30 days of the date of the 

Administrator’s notification. 

For additional discussion related to 

§ 5.12, see part III.B.3.xxi 

(‘‘Debarment’’). 

viii. Section 5.16 Training Plans 

Approved or Recognized by the 

Department of Labor Prior to August 20, 

1975 

As noted above (see part III.B.3.iii(C) 

‘‘29 CFR 5.5(a)(4) Apprentices.’’), the 

Department proposes to rescind and 

reserve § 5.16. Originally published 

along with § 5.5(a)(4)(ii) in a 1975 final 

rule, § 5.16 is essentially a grandfather 

clause permitting contractors, in 

connection with certain training 

programs established prior to August 20, 

1975, to continue using trainees on 

Federal and federally assisted 

construction projects without having to 

seek additional approval from the 

Department pursuant to § 5.5(a)(4)(ii). 

See 40 FR 30480. Since § 5.16 appears 

to be obsolete more than four decades 

after its issuance, the Department 

proposes to rescind and reserve the 

section. The Department also proposes 

several technical edits to § 5.5(a)(4)(ii) to 

remove references to § 5.16. 

ix. Section 5.17 Withdrawal of 

Approval of a Training Program 

As discussed in detail above, the 

Department proposes to remove 

references to trainees and training 

programs throughout parts 1 and 5 (see 

section iii(C) ‘‘29 CFR 5.5(a)(4) 

Apprentices.’’) as well as rescind and 

reserve § 5.16 (see section viii ‘‘Section 

5.16 Training plans approved or 

recognized by the Department of Labor 

prior to August 20, 1975.’’). 

Accordingly, the Department also 

proposes to rescind and reserve § 5.17. 

x. Section 5.20 Scope and Significance 

of This Subpart 

The Department proposes two 

technical corrections to § 5.20. First, the 

Department proposes to correct a 

typographical error in the citation to the 

Portal-to-Portal Act of 1947 to reflect 

that the relevant section of the Portal-toPortal Act is codified at 29 U.S.C. 259, 

not 29 U.S.C. 359. Second, the last 

sentence of § 5.20 currently states, 

‘‘Questions on matters not fully covered 

by this subpart may be referred to the 

Secretary for interpretation as provided 

in § 5.12.’’ However, the regulatory 

provision titled ‘‘Rulings and 

Interpretations,’’ which this section is 


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107See Revision of Title 40, U.S.C., ‘‘Public 

Buildings, Property, and Works,’’ Public Law 107– 

217, 3141, 116 Stat. 1062, 1150 (Aug. 21, 2002). 

108See Office of the Federal Register, Document 

Drafting Handbook § 3.6 (Aug. 2018 ed., rev. Mar. 

24, 2021), available at https://www.archives.gov/ 

files/Federal-register/write/handbook/ddh.pdf. 

meant to reference, is currently located 

at § 5.13. The Department therefore 

proposes to replace the incorrect 

reference to § 5.12 with the correct 

reference to § 5.13. 

xi. Section 5.23 The Statutory 

Provisions 

The Department proposes to make 

technical, non-substantive changes to 

§ 5.23. The existing text of § 5.23 

primarily consists of a lengthy quotation 

of a particular fringe benefit provision of 

the 1964 amendments to the DBA. The 

Department proposes to replace this text 

with a summary of the statutory 

provision at issue for two reasons. First, 

due to a statutory amendment, the 

quotation set forth in existing § 5.23 no 

longer accurately reflects the statutory 

language. Specifically, on August 21, 

2002, Congress enacted legislation 

which made several non-substantive 

revisions to the relevant 1964 DBA 

amendment provisions and recodified 

those provisions from 40 U.S.C. 276a(b) 

to 40 U.S.C. 3141.107 The Department 

proposes to update § 5.23 to include a 

citation to 40 U.S.C. 3141(2). Second, 

the Office of the Federal Register 

disfavors lengthy block quotations of 

statutory text.108 In light of this drafting 

convention, and because the existing 

quotation in § 5.23 no longer accurately 

reflects the statutory language, the 

Department is proposing to revise § 5.23 

so that it paraphrases the statutory 

language set forth at 40 U.S.C. 3141(2). 

xii. Section 5.25 Rate of Contribution 

or Cost for Fringe Benefits 

The Department proposes to add new 

paragraph (c) to existing § 5.25 to codify 

the principle of annualization used to 

calculate the amount of Davis-Bacon 

credit that a contractor may receive for 

contributions to a fringe benefit plan 

when the contractor’s workers also work 

on private projects. While existing 

guidance generally requires the use of 

annualization to compute the hourly 

equivalent of fringe benefits, 

annualization is not currently addressed 

in the regulations. The Department’s 

proposal would require annualization of 

fringe benefits unless a contractor is 

approved for an exception and provide 

guidance on how to properly annualize 

fringe benefits. The proposed revision 

also creates a new administrative 

process that contractors must follow to 

obtain approval by the Administrator for 

an exception from the annualization 

requirement. 

Consistent with the Secretary’s 

authority to set the prevailing wage, 

WHD has long concluded that a 

contractor generally may not calculate 

Davis-Bacon credit for all its 

contributions to a fringe benefit plan in 

a given time period based solely upon 

the workers’ hours on a Davis-Bacon 

project when the contractor’s workers 

also work on private projects for the 

contractor in that same time period. See, 

e.g., Miree Constr. Corp. v. Dole, 930 

F.2d 1536, 1545–46 (11th Cir. 1991); see 

also, e.g., WHD Opinion Letter DBRA– 

72 (June 5, 1978); WHD Opinion Letter 

DBRA–134 (June 6, 1985); WHD 

Opinion Letter DBRA–68 (May 22, 

1984); FOH 15f11(b). WHD’s guidance 

explains that contributions made to a 

fringe benefit plan for government work 

generally may not be used to fund the 

plan for periods of non-government 

work, and a contractor typically must 

convert its total annual contributions to 

the fringe benefit plan to an hourly cash 

equivalent by dividing the cost of the 

fringe benefit by the total number of 

working hours (DBRA and non-covered) 

to determine the amount creditable 

towards meeting its obligation to pay 

the prevailing wage under the DBRA. 

See FOH 15f11(b), 15f12(b). 

This principle, which is referred to as 

‘‘annualization,’’ thus generally compels 

a contractor performing work on a 

Davis-Bacon covered project to divide 

its contributions to a fringe benefit plan 

for a worker by that worker’s total hours 

of work on both Davis-Bacon and 

private projects for the employer in that 

year, rather than attribute those 

contributions solely to the worker’s 

work on Davis-Bacon covered projects. 

Annualization effectively prohibits 

contractors from using fringe benefit 

plan contributions attributable to work 

on private jobs to meet their prevailing 

wage obligation for DBRA-covered 

work. See, e.g., Miree Constr., 930 F.2d 

at 1545 (annualization ensures receipt of 

the prevailing wage by ‘‘prevent[ing] 

employers from receiving Davis-Bacon 

credit for fringe benefits actually paid to 

employees during non-Davis-Bacon 

work’’). Annualization is intended to 

prevent the use of DBRA work as the 

disproportionate or exclusive source of 

funding for benefits that are continuous 

in nature and that constitute 

compensation for all the worker’s work, 

both Davis-Bacon covered and private. 

Despite the longstanding nature of this 

policy, however, the concept of 

annualization is not expressly referred 

to in the Davis-Bacon regulations. 

For many years, WHD has required 

contractors to annualize contributions 

for most types of fringe benefit plans, 

including health insurance plans, 

apprenticeship training plans, vacation 

plans, and sick leave plans. WHD’s 

rationale for requiring annualization is 

that such contributions finance benefits 

that: (1) Are continuous in nature, and 

(2) reflect compensation for all of the 

work performed by a laborer or 

mechanic, including work on both DBAcovered and private projects. One 

notable exception to this general rule 

compelling the annualization of fringe 

benefit plan contributions, however, is 

that WHD has not required 

annualization for defined contribution 

pension plans (DCPPs) that provide for 

immediate participation and essentially 

immediate vesting (e.g., 100 percent 

vesting after a worker works 500 or 

fewer hours). See WHD Opinion Letter 

DBRA–134 (June 6, 1985); see also FOH 

15f14(f)(1). The rationale for such 

exclusion is that DCPPs are not 

continuous in nature, as the benefits are 

not available until a worker’s 

retirement, and that they ensure that the 

vast majority of workers will receive the 

full amount of contributions made on 

their behalf. However, WHD does not 

currently have any public guidance 

explaining the extent to which other 

plans may also share those 

characteristics and warrant an exception 

from the annualization principle. 

To clarify when an exception to the 

general annualization principle may be 

appropriate, the Department proposes 

language stating that a fringe benefit 

plan may only qualify for such an 

exception when three criteria are 

satisfied: (1) The benefit provided is not 

continuous in nature; (2) the benefit 

does not provide compensation for both 

public and private work; and (3) the 

plan provides for immediate 

participation and essentially immediate 

vesting. In accordance with the 

Department’s longstanding guidance, a 

plan will generally be considered to 

have essentially immediate vesting if 

the benefits vest after a worker works 

500 or fewer hours. These criteria are 

not necessarily limited to DCPPs. 

However, to ensure that the criteria are 

applied correctly and that workers’ 

Davis-Bacon wages are not 

disproportionately used to fund benefits 

during periods of private work, such an 

exception can only apply when the plan 

in question has been submitted to the 

Department for review and approval. 

Such requests may be submitted by plan 

administrators, contractors, or their 

representatives. However, to avoid any 

disruption to the provision of worker 

benefits, the Department also proposes 

that any plan that does not require 


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annualization under the Department’s 

existing guidance, such as DCPPs, may 

continue to use such an exception until 

the plan has either requested and 

received a review of its exception status 

under this process, or until 18 months 

have passed from the effective date of 

this rule, whichever comes first. 

By requiring annualization, the 

proposed paragraph (c) furthers the 

above policy goal of protecting workers’ 

fringe benefits from dilution by 

preventing contractors from taking 

credit for fringe benefits attributable to 

work on non-governmental projects 

against fringe benefits required on DBAcovered work. The proposed exception 

also provides the flexibility for plans 

that do not dilute workers’ fringe 

benefits to avoid the annualization 

requirement if they meet the proposed 

criteria, which are based on the 

Department’s existing guidance with 

which stakeholders are already familiar. 

In this way, the Department hopes to 

strike a balance between protecting 

workers and preserving access to the 

types of plans that have traditionally 

been considered exempt from the 

annualization requirement. 

xiii. Section 5.26 ‘‘ * * * Contribution 

Irrevocably Made * * * to a Trustee or 

to a Third Person’’ 

The Department proposes several 

non-substantive technical corrections to 

§ 5.26 to improve clarity and readability. 

xiv. Section 5.28 Unfunded Plans 

The Department proposes several 

revisions to this section. First, the 

Department proposes a technical 

correction to the citation to the DBA to 

reflect the codification of the relevant 

provision at 40 U.S.C. 3141(2)(B)(ii), as 

well as a number of non-substantive 

revisions. 

Additionally, the Department 

proposes adding a new paragraph (b)(5) 

to this section, explicitly stating that 

unfunded benefit plans or programs 

must be approved by the Secretary in 

order to qualify as bona fide fringe 

benefits, and a new paragraph (c) 

explaining the process contractors and 

subcontractors must use to request such 

approval. To accommodate these 

proposed additions, the text currently 

located in paragraph (c) of this section 

would be moved to new paragraph (d). 

As other regulatory sections make 

clear, if a contractor provides its 

workers with fringe benefits through an 

unfunded plan instead of by making 

irrevocable payments to a trustee or 

other third person, the contractor may 

only take credit for any costs reasonably 

anticipated in providing such fringe 

benefits if it has submitted a request in 

writing to the Department and the 

Secretary has determined that the 

applicable standards of the DBA have 

been met. See 29 CFR 5.5(a)(1)(iv), 

5.29(e). However, § 5.28 does not 

mention this approval requirement, 

even though it is the section that most 

specifically discusses requirements for 

unfunded plans. Incorporating this 

requirement and a description of the 

approval process into § 5.28 would 

therefore help improve regulatory 

clarity. Accordingly, the Department 

proposes to revise § 5.28 to clarify that, 

for payments under an unfunded plan 

or program to be credited as fringe 

benefits, contractors and subcontractors 

must submit a written request, 

including sufficient documentation, for 

the Secretary to consider in determining 

whether the plan or program, and the 

benefits proposed to be provided 

thereunder, are ‘‘bona fide,’’ meet the 

factors set forth in § 5.28(b)(1)–(4), and 

are otherwise consistent with the Act. 

The Department also proposes to add 

language to explain that such requests 

must be submitted by mail to WHD’s 

Division of Government Contracts 

Enforcement, via email to unfunded@

dol.gov or any successor address, or via 

any other means directed by the 

Administrator. 

The proposed revised regulation 

provides that a request for approval of 

an unfunded plan must include 

sufficient documentation to enable the 

Department to evaluate whether the 

plan satisfies the regulatory criteria. To 

provide flexibility, the proposed revised 

regulation does not itself specify the 

documentation that must be submitted 

with the request. However, current 

paragraph (c) of this section, and 

proposed paragraph (d), explain that the 

words ‘‘reasonably anticipated’’ 

contemplate a plan that can ‘‘withstand 

a test’’ of ‘‘actuarial soundness.’’ While 

WHD’s determination whether or not an 

unfunded plan meets the statutory and 

regulatory requirements will be based 

on the totality of the circumstances, the 

type of information WHD will require 

from contractors or subcontractors in 

order to make such a determination will 

typically include: (1) Identification of 

the benefit(s) to be provided; (2) an 

explanation of the funding/contribution 

formula; (3) an explanation of the 

financial analysis methodology used to 

estimate the costs of the plan or program 

benefits and how the contractor has 

budgeted for those costs; (4) a 

specification of how frequently the 

contractor either sets aside funds in 

accordance with the cost calculations to 

meet claims as they arise, or otherwise 

budgets, allocates, or tracks such funds 

to ensure that they will be available to 

meet claims; (5) an explanation of 

whether employer contribution amounts 

are different for Davis-Bacon and nonprevailing wage work; (6) identification 

of the administrator of the plan or 

program and the source of the funds the 

administrator uses to pay the benefits 

provided by the plan or program; (7) 

specification of the Employee 

Retirement Income Security Act of 1974 

(ERISA) status of the plan or program; 

and (8) an explanation of how the plan 

or program is communicated to laborers 

or mechanics. 

xv. Section 5.29 Specific Fringe 

Benefits 

The Department proposes to revise 

§ 5.29 to add a new paragraph (g) that 

addresses how contractors may claim a 

fringe benefit credit for the costs of an 

apprenticeship program. While § 5.29(a) 

states that fringe benefits may be used 

for the defrayment of the costs of 

apprenticeship programs, the 

regulations do not presently address 

how to properly credit such 

contributions against a contractor’s 

fringe benefit obligations. The proposed 

revision would codify the Department’s 

longstanding practice and 

interpretation. See WHD Opinion 

Letters DBRA–116 (May 17, 1978), 

DBRA–18 (Sept. 7, 1983), DBRA–16 

(July 28, 1987), DBRA–160 (March 10, 

1990); see also FOH 15f17. The 

proposed revision also reflects relevant 

case law. See Miree Constr. Corp., WAB 

No. 87–13, 1989 WL 407466 (Feb. 17, 

1989); Miree Constr. Corp. v. Dole, 730 

F. Supp. 385 (N.D. Ala. 1990); Miree 

Constr. Corp. v. Dole, 930 F.2d at 1537. 

Proposed paragraph (g) clarifies when 

a contractor may take credit for 

contributions made to an apprenticeship 

program and how to calculate the credit 

a contractor may take against its fringe 

benefit obligation. First, the proposed 

paragraph states that for a contractor or 

subcontractor to take credit for the costs 

of an apprenticeship program, the 

program, in addition to meeting all 

other requirements for fringe benefits, 

must be registered with the Department 

of Labor’s Employment and Training 

Administration, Office of 

Apprenticeship (OA), or with a State 

Apprenticeship Agency recognized by 

the OA. Additionally, the proposed 

paragraph explains that contractors may 

take credit for the actual costs of the 

apprenticeship program, such as tuition, 

books, and materials, but may not take 

credit for additional contributions that 

are beyond the costs actually incurred 

for the apprenticeship program. It also 

reiterates the Department’s position that 

the contractor may only claim credit 


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towards its prevailing wage obligations 

for the classification of laborer or 

mechanic that is the subject of the 

apprenticeship program. For example, if 

a contractor has apprentices registered 

in a bona fide apprenticeship program 

for carpenters, the contractor could 

claim a credit for the costs of the 

apprenticeship program towards the 

prevailing wages due to the carpenters 

on a Davis-Bacon project, but could not 

apply that credit towards the prevailing 

wages due to the electricians or laborers 

on the project. Likewise, the proposed 

paragraph explains that, when applying 

the annualization principle discussed 

above, the workers whose total working 

hours are used to calculate the hourly 

contribution amount are limited to those 

workers in the same classification as the 

apprentice, and that this hourly amount 

may only be applied toward the wage 

obligations for such workers. 

The Department also proposes a 

minor technical revision to subsection 

(e) to include a citation to § 5.28, which 

provides additional guidance on 

unfunded plans. 

xvi. Section 5.30 Types of Wage 

Determinations 

The Department proposes several 

non-substantive revisions to § 5.30. In 

particular, the Department proposes to 

update the illustrations in § 5.30(c) to 

more closely resemble the current 

format of wage determinations issued 

under the DBA. The current illustrations 

in § 5.30(c) list separate rates for various 

categories of fringe benefits, including 

‘‘Health and welfare,’’ ‘‘Pensions,’’ 

‘‘Vacations,’’ ‘‘Apprenticeship 

program,’’ and ‘‘Others.’’ However, 

current Davis-Bacon wage 

determinations typically contain a 

single combined fringe benefit rate per 

classification, rather than separately 

listing rates for different categories of 

fringe benefits. To avoid confusion, the 

Department proposes to update the 

illustrations to reflect the way in which 

fringe benefits are typically listed on 

wage determinations. The Department 

has also proposed several nonsubstantive revisions to § 5.30(a) and 

(b), including revisions pertaining to the 

updated illustrations in § 5.30(c). 

xvii. Section 5.31 Meeting Wage 

Determination Obligations 

The Department has proposed to 

update the illustrations in § 5.30(c) to 

more closely resemble the current 

format of wage determinations under 

the DBRA. The Department therefore 

proposes to make technical, nonsubstantive changes to § 5.31 to reflect 

the updated illustration in § 5.30(c). 

xviii. Section 5.33 Administrative 

Expense of a Contractor or 

Subcontractor 

The Department proposes to add a 

new § 5.33 to codify existing WHD 

policy under which a contractor or 

subcontractor may not take Davis-Bacon 

credit for its own administrative 

expenses incurred in connection with 

the administration of a fringe benefit 

plan. See WHD Opinion Letter DBRA– 

72 (June 5, 1978); see also FOH 15f18. 

This is consistent with Department case 

law under the DBA, under which such 

payments are viewed as ‘‘part of [an 

employer’s] general overhead expenses 

of doing business and should not serve 

to decrease the direct benefit going to 

the employee.’’ Collinson Constr. Co., 

WAB No. 76–09, 1977 WL 24826, at *2 

(Apr. 20, 1977) (also noting that the 

DBA’s inclusion of ‘‘costs’’ in the 

provision currently codified at 40 U.S.C. 

3141(2)(B)(ii) refers to ‘‘the costs of 

benefits under an unfunded plan’’) 

(emphasis in original); see also CodyZeigler, Inc., ARB Nos. 01–014, 01–015, 

2003 WL 23114278, at *20 (Dec. 19, 

2003) (applying Collinson and 

concluding that a contractor improperly 

claimed its administrative costs for 

‘‘bank fees, payments to clerical workers 

for preparing paper work and dealing 

with insurance companies’’ as a fringe 

benefit). This is also consistent with the 

Department’s regulations and guidance 

under the SCA. See 29 CFR 4.172; FOH 

14j00(a)(1). 

The Department also seeks public 

comment regarding whether it should 

clarify this principle further with 

respect to third-party administrative 

costs. Under both the DBA and SCA, 

fringe benefits include items such as 

health insurance, which necessarily 

involves both the payment of benefits 

and administration of benefit claims. 40 

U.S.C. 3141(2)(B); 41 U.S.C. 6703(2). 

Accordingly, reasonable costs incurred 

by a third-party fiduciary in its 

administration and delivery of fringe 

benefits to employees are creditable 

under the SCA. See WHD Opinion 

Letter SCA–93 (Jan. 27, 1994) (noting, in 

a circumstance in which an SCA 

contractor contributed to a pension plan 

on behalf of its employees, that ‘‘the 

plan itself may recoup [its] 

administrative costs’’). For example, a 

contractor may take credit for the 

premiums it pays to a health insurance 

carrier, and the insurance carrier may 

use those premium payments both to 

pay for workers’ medical expenses and 

to pay the reasonable costs of tasks 

related to the administration and 

delivery of benefits, such as evaluating 

benefit claims, deciding whether they 

should be paid, and approving referrals 

to specialists. See FOH 14j00(a)(2). The 

Department applies a similar standard 

under the DBA. 

However, whether fees charged by a 

third party are creditable depends on 

the facts and circumstances. As noted 

above, a contractor’s own administrative 

costs incurred in connection with the 

provision of fringe benefits are not 

creditable, as they are considered the 

contractor’s business expenses. See 

Collinson, 1977 WL 24826, at *2; 29 

CFR 4.172. As such, WHD has 

previously advised that if a third party 

is merely performing on the contractor’s 

behalf administrative functions 

associated with providing fringe 

benefits to employees, rather than 

actually administering claims and 

paying benefits, the contractor’s 

payments to such a third party are not 

creditable because they substitute for 

the contractor’s own administrative 

costs. Such functions include, for 

example, tracking the amount of the 

contractor’s fringe benefit contributions, 

making sure those contributions cover 

the fringe benefit credit claimed by the 

contractor, tracking and paying invoices 

from third-party administrators, and 

sending lists of new hires to the plan 

administrators. Essentially, the 

principle explained in 29 CFR 4.172, 

FOH 14j00(a)(1), FOH 15f18, and 

proposed § 5.33 that a contractor may 

not take credit for its own 

administrative expenses applies 

regardless of whether a contractor uses 

its own employees to perform this sort 

of administrative work or engages 

another company to handle these tasks. 

The Department has received an 

increasing number of inquiries in recent 

years regarding the extent to which fees 

charged by third parties for performing 

such administrative tasks are or are not 

creditable. As such, while not proposing 

specific regulatory text, the Department 

proposes to clarify this matter in a final 

rule. The Department seeks comment on 

whether it should incorporate the 

above-described policies, or other 

policies regarding third-party entities, 

into its regulations. In addition, the 

Department seeks comment on 

examples of the administrative duties 

performed by third parties that do not 

themselves pay benefits or administer 

benefit claims. 

The Department also seeks comment 

on the extent to which third-party 

entities both (1) perform administrative 

functions associated with providing 

fringe benefits to employees, such as 

tracking a contractor’s fringe benefit 

contributions, and (2) actually 

administer and deliver benefits, such as 

evaluating and paying out medical 


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claims, and on how the Department 

should treat payments to any such 

entities. For instance, should the 

Department consider the cost of the 

administrative functions in (1) noncreditable business expenses, and the 

cost of actual benefits administration 

and payment in (2) to be creditable as 

fringe benefit contributions? 

Alternatively, should the creditability of 

payments to such an entity depend on 

what the third-party entity’s primary 

function is? Should the answer to these 

questions depend on whether the thirdparty entity is an employee welfare plan 

within the meaning of ERISA, 29 U.S.C. 

1002(1)? 

xix. Anti-Retaliation 

The Department proposes to add antiretaliation provisions to enhance 

enforcement of the DBRA, and their 

implementing regulations in 29 CFR 

parts 1, 3, and 5. The proposed new 

anti-retaliation provisions are intended 

to discourage contractors, responsible 

officers, and any other persons from 

engaging in—or causing others to engage 

in—unscrupulous business practices 

that may chill worker participation in 

WHD investigations or other compliance 

actions and enable prevailing wage 

violations to go undetected. The 

proposed anti-retaliation regulations are 

also intended to provide make-whole 

relief for any worker who has been 

discriminated against in any manner for 

taking, or being perceived to have taken, 

certain actions concerning the labor 

standards provisions of the DBA, 

CWHSSA and other Related Acts, and 

the regulations in parts 1, 3, and 5. 

In most WHD DBRA investigations or 

other compliance actions, effective 

enforcement requires worker 

cooperation. Information from workers 

about their actual hours worked and 

their pay is often essential to uncover 

violations such as falsification of 

certified payrolls or wage 

underpayments by contractors or 

subcontractors who fail to keep any pay 

or time records, or whose records are 

inaccurate or incomplete. Workers are 

often reluctant to come forward with 

information about potential violations of 

the laws WHD enforces because they 

fear losing their jobs or suffering other 

adverse consequences. Workers are 

similarly reluctant to raise these issues 

with their supervisors. Such reluctance 

to inquire or complain internally may 

result in lost opportunities for early 

correction of violations by contractors. 

The current Davis-Bacon regulations 

protect the identity of confidential 

worker-informants in large part to 

prevent retribution by contractors for 

whom they work. See 29 CFR 5.6(a)(5), 

6.5. This protection helps combat the 

‘‘possibility of reprisals’’ by ‘‘vindictive 

employers’’ against workers who speak 

out about wage and hour violations, but 

does not eliminate it. Cosmic Constr. 

Co., WAB No. 79–19, 1980 WL 95656, 

at *5 (Sept. 2, 1980). 

When contractors retaliate against 

workers who cooperate or are suspected 

of cooperating with WHD or who make 

internal complaints, neither worker 

confidentiality nor the Davis-Bacon 

remedial measures of back wages or 

debarment can make workers whole. 

The Department’s proposed antiretaliation provisions aim to remedy 

such situations by providing makewhole relief to workers who are 

retaliated against, as well as by deterring 

or correcting interference with DavisBacon worker protections. 

The Department’s authority to 

promulgate the anti-retaliation 

provisions stems from 40 U.S.C. 3145 

and Reorganization Plan No. 14 of 1950. 

In transmitting the Reorganization Plan 

to Congress, President Truman noted 

that ‘‘the principal objective of the plan 

is more effective enforcement of labor 

standards,’’ and that the plan ‘‘will 

provide more uniform and more 

adequate protection for workers through 

the expenditures made for the 

enforcement of the existing legislation.’’ 

Special Message to the Congress 

Transmitting Reorganization Plan No. 

14 of 1950, reprinted in 5 U.S.C. app. 1 

(Mar. 13, 1950) (1950 Special Message 

to Congress). 

It is well settled that the Department 

has regulatory authority to debar 

Related Act contractors even though the 

Related Acts do not expressly provide 

for debarment. See Janik Paving & 

Constr., Inc. v. Brock, 828 F.2d 84, 90, 

91 (2d Cir. 1987) (upholding debarment 

for CWHSSA violations even though 

that statute ‘‘specifically provided civil 

and criminal sanctions for violations of 

overtime work requirements but failed 

to mention debarment’’). In 1951 the 

Department added a new part 5 to the 

DBRA regulations, including the Related 

Act debarment regulation. See 16 FR 

4430. The Department explained it was 

doing so in compliance with the 

directive of Reorganization Plan No. 14 

of 1950 to ‘‘assure coordination of 

administration and consistency of 

enforcement of the labor standards 

provisions’’ of the DBRA. Id. Just as 

regulatory debarment is a permissible 

exercise of the Department’s ‘‘implied 

powers of administrative enforcement,’’ 

Janik, 828 F.2d at 91, so too are the 

proposed anti-retaliation provisions—as 

well as the revised Related Act 

debarment provisions discussed below 

in part III.B.3.xxi (‘‘Debarment’’). The 

Department believes that it would be 

both efficient and consistent with the 

remedial purpose of the DBRA to 

investigate and adjudicate complaints of 

retaliation as part of WHD’s 

enforcement of the DBRA. These 

proposed measures will help achieve 

more effective enforcement of the DavisBacon labor standards. 

Currently, debarment is the primary 

mechanism under the DBRA civil 

enforcement scheme for remedying 

retribution against workers who assert 

their right to prevailing wages. 

Debarment is also the main tool for 

addressing less tangible discrimination 

such as interfering with investigations 

by intimidating or threatening workers. 

Such unscrupulous behavior may be 

both a ‘‘disregard of obligations’’ to 

workers under the DBA and ‘‘aggravated 

or willful’’ violations under the current 

Related Act regulations that warrant 

debarment. See 40 U.S.C. 3144(b)(1); 29 

CFR 5.12(a)(1), (a)(2), (b)(1). 

Both the ARB and ALJs have debarred 

contractors in part because of their 

retaliatory conduct or interference with 

WHD investigations. See, e.g., 

Pythagoras Gen. Contracting Corp., 2011 

WL 1247207, at *13 (affirming 

debarment of contractor and its 

principal in a DBRA case in part 

because of the ‘‘attempt [by principal 

and other officials of the contractor] at 

witness coercion or intimidation’’ when 

they visited former employees to talk 

about their upcoming hearing 

testimony); R.J. Sanders, Inc., WAB No. 

90–25, 1991 WL 494734, at *1–2 (Jan. 

31, 1991) (affirming ALJ’s finding that 

employer’s retaliatory firing of an 

employee who reported to a Navy 

inspector being paid less than the 

prevailing wage was ‘‘persuasive 

evidence of a willful violation of the 

[DBA]’’); Early & Sons, Inc., ALJ No. 85– 

DBA–140, 1986 WL 193128, at *8 (OALJ 

Aug. 5, 1986) (willful and aggravated 

DBRA violations evidenced in part 

where worker who ‘‘insisted on 

[receiving the mandated wage] . . . was 

told, in effect, to be quiet or risk losing 

his job’’), rev’d on other grounds, WAB 

No. 86–25, 1987 WL 247044, at *2 (Jan. 

29, 1987); Enviro & Demo Masters, Inc., 

ALJ No. 2011–DBA–00002, Decision 

and Order, slip op. at 9–10, 15, 59, 62– 

64 (OALJ Apr. 23, 2014) (Enviro D&O) 

(debarring subcontractor, its owner, and 

a supervisor because of ‘‘aggravated and 

willful avoidance of paying the required 

prevailing wages’’ which included firing 

an employee who refused to sign a 

declaration repudiating his DBRA 

rights, and instructing workers to lie 

about their pay and underreport their 

hours if questioned by investigators). 


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There are also criminal sanctions for 

certain coercive conduct by DBRA 

contractors. The Copeland AntiKickback Act makes it a crime to induce 

DBRA-covered construction workers to 

give up any part of compensation due 

‘‘by force, intimidation, or threat of 

procuring dismissal from employment, 

or by any other manner whatsoever.’’ 18 

U.S.C. 874; cf. 29 CFR 5.10(b) 

(discussing criminal referrals for DBRA 

violations). Such prevailing wage 

kickback schemes are also willful or 

aggravated violations of the civil 

Copeland Act (a Related Act) that 

warrant debarment. See 40 U.S.C. 3145; 

see, e.g., Killeen Elec. Co., WAB No. 87– 

49, 1991 WL 494685, at *5 (Mar. 21, 

1991). 

Interference with WHD investigations 

or other compliance actions may also 

warrant criminal prosecution. For 

example, in addition to owing 37 

workers $656,646 in back wages in the 

DBRA civil administrative proceeding, 

see Enviro D&O at 66, both the owner 

of Enviro & Demo Masters and his 

father, the supervisor, were convicted of 

Federal crimes including witness 

tampering and conspiracy to commit 

witness tampering. These officials 

instructed workers at the jobsite to hide 

from and ‘‘lie to investigators about 

their working hours and wages,’’ and 

they fired workers who spoke to 

investigators or refused to sign false 

documents. Naranjo v. United States, 

No. 17–CV–9573, 2021 WL 1063442, at 

*1–2 (S.D.N.Y. Feb. 26, 2021), report 

and recommendation adopted by 2021 

WL 1317232 (S.D.N.Y. Apr. 8, 2021); see 

also Naranjo, Sr. v. United States, No. 

16 Civ. 7386, 2019 WL 7568186, at *1 

(S.D.N.Y. Dec. 16, 2019), report and 

recommendation adopted by 2020 WL 

174072, at *1 (S.D.N.Y. Jan. 13, 2020). 

Though contractors, subcontractors, 

and their responsible officers may be 

debarred—and even criminally 

prosecuted—for retaliatory conduct, 

laborers and mechanics who have been 

discriminated against for speaking up, 

or for having been perceived as speaking 

up, currently have no redress under the 

Department’s regulations implementing 

the DBA or Related Acts to the extent 

that back wages do not make them 

whole. For example, WHD currently 

may not order reinstatement of workers 

fired for their cooperation with 

investigators or as a result of an internal 

complaint to their supervisor. Nor may 

the Department award back pay for the 

period after a worker is fired. Similarly, 

WHD cannot require contractors to 

compensate workers for the difference 

in pay resulting from retaliatory 

demotions or reductions in hours. The 

addition of anti-retaliation provisions is 

a logical extension of the DBA and 

Related Acts debarment remedial 

measure. It would supplement 

debarment as an enforcement tool to 

more effectively prevent retaliation and 

interference or any other such 

discriminatory behavior. An antiretaliation mechanism would also build 

on existing back-wage remedies by 

extending compensation to a fuller 

range of harms. 

The Department therefore proposes to 

add two new regulatory provisions 

concerning anti-retaliation, as well as to 

update several other regulations to 

reflect the new anti-retaliation 

provisions. 

(A) Proposed New § 5.5(a)(11) and (b)(5) 

The Department proposes to 

implement anti-retaliation in part by 

adding a new anti-retaliation provision 

to all contracts subject to the DBA or 

Related Acts. Proposed contract clauses 

provided for in § 5.5(a)(11) and (b)(5) 

state that it is unlawful for any person 

to discharge, demote, intimidate, 

threaten, restrain, coerce, blacklist, 

harass, or in any other manner 

discriminate, or to cause any person to 

do the same, against any worker for 

engaging in a number of protected 

activities. The protected activities 

include notifying any contractor of any 

conduct which the worker reasonably 

believes constitutes a violation; filing 

any complaints, initiating or causing to 

be initiated any proceeding, or 

otherwise asserting any right or 

protection; cooperating in an 

investigation or other compliance 

action, or testifying in any proceeding; 

or informing any other person about 

their rights under the DBA, Related 

Acts, or the regulations in 29 CFR parts 

1, 3, or 5, for proposed § 5.5(a)(11), or 

the CWHSSA or its implementing 

regulations in 29 CFR part 5, for 

proposed § 5.5(b)(5). 

The scope of these anti-retaliation 

provisions is intended to be broad in 

order to better effectuate the remedial 

purpose of the DBRA to protect workers 

and ensure that they are not paid 

substandard wages. Workers must feel 

free to speak openly—with contractors 

for whom they work and contractors’ 

responsible officers and agents, with the 

Department, and with co-workers— 

about conduct that they reasonably 

believe to be a violation of the 

prevailing wage requirements or other 

Davis-Bacon labor standards. These 

proposed anti-retaliation provisions 

recognize that worker cooperation is 

critical to enforcement of the DBRA. 

They also incentivize compliance and 

seek to eliminate any competitive 

disadvantage borne by government 

contractors and subcontractors that 

follow the rules. 

In line with those remedial goals, the 

Department intends the proposed antiretaliation provisions to protect internal 

complaints, or other assertions of 

workers’ Davis-Bacon or CWHSSA labor 

standards protections set forth in 

§ 5.5(a)(11) and (b)(5), as well as 

interference that may not have an 

adverse monetary impact on the affected 

workers. Similarly, the Department 

intends the anti-retaliation provisions to 

also apply in situations where there is 

no current work or employment 

relationship between the parties; for 

example, it would prohibit retaliation 

by a prospective or former employer or 

contractor (or both). Finally, the 

Department’s proposed rule seeks to 

protect workers who make oral as well 

as written complaints, notifications, or 

other assertions of their rights protected 

under § 5.5(a)(11) and (b)(5). 

(B) Proposed New § 5.18 

The Department proposes remedies to 

assist in enforcement of the DBRA labor 

standards provisions. Section 5.18 sets 

forth the proposed remedies for 

violations of the new anti-retaliation 

provisions. This proposed section also 

includes the process for notifying 

contractors and other persons found to 

have violated the anti-retaliation 

provisions of the Administrator’s 

investigative findings, as well as for 

Administrator directives to remedy such 

violations and provide make-whole 

relief. 

Make-whole relief and remedial 

actions under this provision are 

intended to restore the worker subjected 

to the violation to the position, both 

economically and in terms of work or 

employment status (e.g., seniority, leave 

balances, health insurance coverage, 

401(k) contributions, etc.), that the 

worker would have occupied had the 

violation never taken place. Available 

remedies include, but are not limited to, 

any back pay and benefits denied or lost 

by reason of the violation; other actual 

monetary losses sustained as a direct 

result of the violation; interest on back 

pay or other monetary relief from the 

date of the loss; and appropriate 

equitable or other relief such as 

reinstatement or promotion; 

expungement of warnings, reprimands, 

or derogatory references; the provision 

of a neutral employment reference; and 

posting of notices that the contractor or 

subcontractor agrees to comply with the 

DBRA anti-retaliation requirements. 

In addition, proposed § 5.18 specifies 

that when contractors, subcontractors, 

responsible officers, or other persons 

dispute findings of violations of 


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109Sales on the GSA Multiple Award Schedule 

(MAS), for example, have increased dramatically in 

recent decades—from $4 billion in 1992 to $36.6 

billion in 2020. Gov’t Accountability Office, High 

Risk Series: An Update, GAO–05–207 (Jan. 2005), 

at 25 (Figure 1) (noting these types of contracting 

vehicles ‘‘contribute to a much more complex 

environment in which accountability has not 

always been clearly established’’), available at 

https://www.gao.gov/assets/gao-05-207.pdf; Gen. 

Servs. Admin., GSA FY 2020 Annual Performance 

Report, at 11, available at: https://www.gsa.gov/ 

cdnstatic/GSA%20FY%202020%20Annual%20

Performance%20Report%20v2.pdf. 

110This argument tends to conflate the change 

associated with incorporating a missing contract 

clause or wage determination with any unexpected 

changes by the contracting agency to the actual 

work to be performed under the task order or 

contract. As a general matter, a Competition in 

Contracting Act (CICA) challenge based solely on 

the incorporation of missing labor standards clauses 

or appropriate wage determinations is without 

merit. See Booz Allen Hamilton Eng’g Servs., LLC, 

B–411065 (May 1, 2015), available at https://

www.gao.gov/products/b-411065. 

§ 5.5(a)(11) or (b)(5), the procedures in 

29 CFR 5.11 or 5.12 will apply. 

Conforming revisions are being 

proposed to the withholding provisions 

at §§ 5.5(a)(2) and (b)(3) and 5.9 to 

indicate that withholding includes 

monetary relief for violations of the antiretaliation provisions, § 5.5(a)(11) and 

(b)(5), in addition to withholding of 

back wages for DBRA prevailing wage 

violations and CWHSSA overtime 

violations. 

Similarly, conforming changes are 

being proposed to §§ 5.6(a)(4) and 

5.10(a). Computations of monetary relief 

for violations of the anti-retaliation 

provisions have been added to the 

limited investigatory material that may 

be disclosed without the permission and 

views of the Department under 

§ 5.6(a)(4). In proposed § 5.10(a), 

monetary violations of anti-retaliation 

provisions have been added as a type of 

restitution. 

As explained above, contractors, 

subcontractors, and their responsible 

officers have long been subject to 

debarment for their retaliatory actions. 

This rulemaking updates DBRA 

enforcement mechanisms by ensuring 

that workers may cooperate with WHD 

or complain internally about perceived 

prevailing wage violations without fear 

of reprisal. This proposed rule is a 

reasonable extension of the 

Department’s broad regulatory authority 

to enforce and administer the DBRA. 

Further, adding anti-retaliation would 

amplify existing back wage and 

debarment remedies by making workers 

whole who suffer the effects of 

retaliatory firings, demotions, and other 

actions that reduce their earnings. This 

important new tool will help carry out 

the DBRA’s remedial purposes by 

bolstering WHD’s enforcement. 

xx. Post-Award Determinations and 

Operation-of-Law 

The Department proposes several 

revisions throughout parts 1 and 5 to 

update and codify the administrative 

procedure for enforcing Davis-Bacon 

labor standards requirements when the 

contract clauses and/or appropriate 

wage determination(s) have been 

wrongly omitted from a covered 

contract. 

(A) Current Regulations 

The current regulations require the 

insertion of the relevant contract clauses 

and wage determination(s) in covered 

contracts. 29 CFR 5.5. Section 5.5(a) 

requires that the appropriate contract 

clauses are inserted ‘‘in full’’ into any 

covered contracts, and the contract 

clause language at § 5.5(a)(1) states that 

the wage determination(s) are 

‘‘attached’’ to the contract. 

The existing regulations at § 1.6(f) 

provide instruction for how the 

Department and contracting agencies 

must act when a wage determination 

has been wrongly omitted from a 

contract. Those regulations provide a 

procedure through which the 

Administrator makes a finding that a 

wage determination should have been 

included in the contract. After the 

finding by the Administrator, the 

contracting agency must either 

terminate and resolicit the contract with 

the valid wage determination, or 

incorporate the wage determination 

retroactively by supplemental 

agreement or change order. The same 

procedure applies where the 

Administrator finds that the wrong wage 

determination was incorporated into the 

contract. The existing regulations at 

§ 1.6(f) specify that the contractor must 

be compensated for any increases in 

wages resulting from any supplemental 

agreement or change order issued in 

accordance with the procedure. 

Under the current regulations, WHD 

has faced multiple longstanding 

enforcement challenges. First, the 

language of § 1.6(f) explicitly refers only 

to omitted wage determinations and 

does not expressly address the situation 

where a contracting agency has 

mistakenly omitted the contract clauses 

from the contract. Although WHD has 

historically relied on § 1.6(f) to address 

this situation, the ambiguity in the 

regulations has caused confusion in 

communications between WHD and 

contracting agencies and delay in 

resolving conflicts. See, e.g., WHD 

Opinion Letters DBRA–167 (Aug. 29, 

1990); DBRA–131 (Apr. 18, 1985). 

Second, under the existing 

regulations, affected workers have 

suffered from significant delays while 

contracting agencies determine the 

appropriate course of action. At a 

minimum, such delays cause problems 

for workers who must endure long waits 

to receive their back wages. At worst, 

the delay can result in no back wages 

recovered at all where witnesses are lost 

or there are no longer any contract 

payments to withhold when a contract 

is finally modified or terminated. In all 

cases, the identification of the 

appropriate mechanism for contract 

termination or modification can be 

difficult and burdensome on Federal 

agencies—in particular during later 

stages of a contract or after a contract 

has ended. 

The process provided in the current 

§ 1.6(f) is particularly problematic 

where a contracting agency has 

questions about whether an existing 

contract can be modified without 

violating another non-DBRA statute or 

regulation. This problem has arisen in 

particular in the context of multiple 

award schedule (MAS) contracts, 

blanket purchase agreements (BPAs), 

and other similar schedule contracts 

negotiated by GSA.109 Contracting 

agencies that have issued task orders 

under GSA schedule contracts have 

been reluctant to modify those task 

orders to include labor standards 

provisions where the governing Federal 

schedule contract does not contain the 

provisions. Under those circumstances, 

contracting agencies have argued that 

such a modification could render that 

task order ‘‘out of scope’’ and therefore 

arguably unlawful. 

Although the Department believes it 

is incorrect that a contract modification 

to incorporate required labor standards 

clauses or wage determinations could 

render a contract or task order out of 

scope,110 concerns about this issue have 

interfered with the Department’s 

enforcement of the labor standards. If a 

contracting agency believes it cannot 

modify a contract consistent with 

applicable procurement law, it may 

instead decide to terminate the contract 

without retroactively including the 

required clauses or wage 

determinations. In those circumstances, 

the regulations currently provide no 

clear mechanism that would allow the 

Department or contracting agencies to 

seek to recover the back wages that the 

workers should have been paid on the 

terminated contract. 

(B) Proposed Regulatory Revisions 

To address these longstanding 

enforcement challenges, the Department 

proposes to exercise its authority under 

Reorganization Plan No. 14 of 1950 and 


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111The Department proposes parallel language in 

29 CFR 5.9 (Suspension of funds) to clarify that 

funds may be withheld under the contract clauses 

and appropriate wage determinations whether they 

have been incorporated into the contract physically, 

by reference, or by operation of law. 

112See 46 FR 4306, 4313 (Jan. 16, 1981); 47 FR 

23644, 23654 (May 28, 1982) (implemented by 48 

FR 19532 (Apr. 29, 1983)). 

113A ruling of the Administrator under § 5.13 that 

Davis-Bacon labor standards do not apply to the 

contract is authoritative and prevents a different 

post-award determination unless the Administrator 

determines that the pre-award ruling was based on 

a factual description provided by the contracting 

agency that was incomplete or inaccurate at the 

time, or that no longer is accurate after 

unanticipated changes were made to the scope of 

the contractor’s work. 

114Factors that the Administrator considers in 

making a determination regarding retroactive 

application are discussed in the ARB’s ruling in 

City of Ellsworth, ARB No. 14–042, at *6–*10. 

Among the non-exclusive list of potential factors 

are ‘‘the reasonableness or good faith of the 

contracting agency’s coverage decision’’ and ‘‘the 

status of the procurement (i.e. to what extent the 

construction work has been completed).’’ Id. at *10. 

In considering the status of the procurement, the 

Administrator will consider the status of 

construction at the time that the coverage or 

correction issue is first raised with the 

Administrator. 

40 U.S.C. 3145 to adopt several changes 

to §§ 1.6, 5.5, and 5.6. 

(1) § 5.5(e) Proposed Operation-of-Law 

Language 

The Department proposes to include 

language in a new paragraph at § 5.5(e) 

to provide that the labor standards 

contract clauses and appropriate wage 

determinations are effective ‘‘by 

operation of law’’ in circumstances 

where they have been wrongly omitted 

from a covered contract. This proposed 

language would assure that, in all cases, 

a mechanism exists to enforce 

Congress’s mandate that workers on 

covered contracts receive prevailing 

wages—notwithstanding any mistake by 

an executive branch official in an initial 

coverage decision or in an accidental 

omission of the labor standards contract 

clauses. It would also ensure that 

workers receive the correct prevailing 

wages if the correct wage determination 

was not attached to the original contract 

or was not incorporated during the 

exercise of an option. In addition, as 

discussed below, the Department is 

proposing language in other regulatory 

provisions to reflect this change and to 

provide safeguards for both contractors 

and contracting agencies. 

Under the proposed language in 

§ 5.5(e), erroneously omitted contract 

clauses and appropriate wage 

determinations would be effective by 

operation of law and therefore 

enforceable retroactive to the beginning 

of the contract or construction. The 

proposed language provides that all of 

the contract clauses set forth in § 5.5— 

the contract clauses at § 5.5(a) and the 

CWHSSA contract clauses at § 5.5(b)— 

are considered to be a part of every 

covered contract, whether or not they 

are physically incorporated into the 

contract. This includes the contract 

clauses requiring the payment of 

prevailing wages and overtime at 

§ 5.5(a)(1) and (b)(1), respectively; the 

withholding clauses at § 5.5(a)(2) and 

(b)(3); and the labor-standards disputes 

clause at § 5.5(a)(9). 

The operation-of-law proposal is 

intended to complement the existing 

requirements in § 1.6(f) and would not 

entirely replace them. Thus, the 

contracting agency would still be 

required to take action as appropriate to 

terminate or modify the contract. Under 

the new proposed procedure, however, 

the Administrator would not need to 

await a contract modification to assess 

back wages and seek withholding, 

because the wage requirements and 

withholding clauses would be read into 

the contract as a matter of law.111 The 

application of the clauses and the 

correct wage determination as a matter 

of law would also provide the 

Administrator with a tool to enforce the 

labor standards on any contract that a 

contracting agency decides it must 

terminate instead of modify. 

Under the proposal, when the 

contract clause or wage determination is 

incorporated into the prime contract by 

operation of law, prime contractors 

would be responsible for the payment of 

applicable prevailing wages to all 

workers under the contract—including 

the workers of their subcontractors— 

retroactive to the contract award or 

beginning of construction, whichever 

occurs first. This is consistent with the 

current Davis-Bacon regulations and 

case law. See 29 CFR 5.5(a)(6); All Phase 

Elec. Co., WAB No. 85–18 (June 18, 

1986) (withholding contract payments 

from the prime for subcontractor 

employees even though the labor 

standards had not been flowed down 

into the subcontract). This 

responsibility, however, would be offset 

by proposed language in § 5.5(e) adding 

a compensation provision that would 

require that the prime contractor be 

compensated for any increases in wages 

resulting from a post-award 

incorporation of a contract clause or 

wage determination by operation of law 

under § 5.5(e). This proposed language 

is modeled after similar language that 

has been included in § 1.6(f) since 

1983.112

The Department recognizes that postaward coverage or correction 

determinations can cause difficulty for 

contracting agencies. Contracting 

agencies avoid such difficulty by 

proactively incorporating the DavisBacon labor standards clauses and 

applicable wage determinations into 

contracts or using the existing process 

for requesting a coverage ruling or 

interpretation from the Administrator 

prior to contract award. See 29 CFR 

5.13.113 In addition, the new language 

provides that a contracting agency will 

continue to be able to request that the 

Administrator grant an exemption from 

retroactive enforcement of wage 

determinations and contract clauses (or, 

where permissible, an exemption from 

prospective application) under the same 

conditions currently applicable to postaward determinations. See 29 CFR 

1.6(f); 29 CFR 5.14; City of Ellsworth, 

ARB No. 14–042, 2016 WL 4238460, at 

*6–*8 (June 6, 2016).114

The operation-of-law provision in 

proposed § 5.5(e) is similar to the 

Department’s existing regulations 

enacting Executive Order 11246—Equal 

Employment Opportunity. See 41 CFR 

60–1.4(e); United States v. Miss. Power 

& Light Co., 638 F.2d 899, 905–06 (5th 

Cir. 1981) (finding 41 CFR 60–1.4(e) to 

be valid and have force of law). The 

operation-of-law provision at 41 CFR 

60–1.4(e), like the proposed language in 

§ 5.5(e), operates in addition to and 

complements the other provisions in the 

Executive Order’s regulations that 

require the equal opportunity contract 

clause to be inserted in full into the 

contract. See 41 CFR 60–1.4(a). 

Unlike 41 CFR 60–1.4(e), the 

Department’s proposed language in the 

new § 5.5(e) would apply the ‘‘operation 

of law’’ provision only to prime 

contracts and not to subcontracts. The 

reason for this difference is that, as 

noted above, the Davis-Bacon 

regulations and case law provide that 

the prime contractor is responsible for 

the payment of applicable wages on all 

subcontracts. If the prime contract 

contains the labor standards as a matter 

of law, then the prime contractor is 

required to ensure that all employees on 

the contract—including subcontractors’ 

employees—receive all applicable 

prevailing wages. Accordingly, the 

Department does not believe that 

extending the operation-of-law 

provision itself to subcontracts is 

necessary to enforce the Congressional 

mandate that all covered workers under 

the contract are paid the applicable 

prevailing wages. 

The proposed operation-of-law 

provision is also similar in many, but 

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115The Federal Circuit has also noted that the 

Christian doctrine applies to the SCA, which has a 

similar purpose as the DBA and dates only to 1965. 

See Call Henry, Inc. v. United States, 855 F.3d 1348, 

1351 & n.1 (Fed. Cir. 2017). Because the DavisBacon Act and Service Contract Act are similar 

statutes with the same basic purpose, the 

Department has long noted that court decisions 

relating to one of these acts have a direct bearing 

on the other. See WHD Opinion Letter SCA–3 (Dec. 

7, 1973). 

116Subsection 1.6(f) did not go into effect until 

April 29, 1983, nearly 2 years after the Coutu 

decision. See 48 FR 19532. Moreover, although the 

Department has used § 1.6(f) to address post-award 

coverage determinations, as discussed above, the 

language of that subsection references wage 

determinations and does not explicitly address the 

omission of required contract clauses. The 

Department now seeks to remedy that ambiguity in 

§ 1.6(f) by adding similar language to § 5.6, as 

discussed below, in addition to the proposed 

operation-of-law language at § 5.5(e). 

developed Christian doctrine, named for 

the 1963 Court of Claims decision, G.L. 

Christian & Assocs. v. United States, 

312 F.2d 418 (Ct. Cl.), reh’g denied, 320 

F.2d 345 (Ct. Cl. 1963). Under the 

doctrine, courts and administrative 

tribunals have held that required 

contractual provisions may be effective 

by operation of law in Federal 

government contracts, even if they were 

not in fact included in the contract. The 

doctrine applies even when there is no 

specific ‘‘operation of law’’ regulation as 

proposed here. 

The Christian doctrine flows from the 

basic concept in all contract law that 

‘‘the parties to a contract . . . are 

presumed or deemed to have contracted 

with reference to existing principles of 

law.’’ 11 Williston on Contracts § 30:19 

(4th ed. 2021); see Ogden v. Saunders, 

25 U.S. 213 (1827). Thus, those who 

contract with the government are 

charged with having ‘‘knowledge of 

published regulations.’’ PCA Health 

Plans of Texas, Inc. v. LaChance, 191 

F.3d 1353, 1356 (Fed. Cir. 1999) 

(citation omitted). 

Under the Christian doctrine, a court 

can find a contract clause effective by 

operation of law if that clause ‘‘is 

required under applicable [F]ederal 

administrative regulations’’ and ‘‘it 

expresses a significant or deeply 

ingrained strand of public procurement 

policy.’’ K-Con, Inc. v. Sec’y of Army, 

908 F.3d 719, 724 (Fed. Cir. 2018). 

Where these prerequisites are satisfied, 

it does not matter if the contract clause 

at issue was wrongly omitted from a 

contract. A court will find that a Federal 

contractor had constructive knowledge 

of the regulation and that the required 

contract clause applies regardless of 

whether it was included in the contract. 

The recent decision of the Federal 

Circuit in K-Con is helpful to 

understanding why it is appropriate to 

provide that the DBA labor standards 

clauses are effective by operation of law. 

In K-Con, the Federal Circuit held that 

the Christian doctrine applies to the 

1935 Miller Act. 908 F.3d at 724–26. 

The Miller Act contains mandatory 

coverage provisions that are similar to 

those in the DBA, though with different 

threshold contract amounts. The Miller 

Act requires that contractors furnish 

payment and performance bonds before 

a contract is awarded for ‘‘the 

construction, alteration, or repair of any 

public building or public work.’’ 40 

U.S.C. 3131(b). The DBA, as amended, 

requires that the prevailing wage 

stipulations be included in bid 

specifications ‘‘for construction, 

alteration, or repair, including painting 

and decorating, of public buildings and 

public works.’’ 40 U.S.C. 3142(a). 

Like the Miller Act, the 90-year old 

Davis-Bacon Act also expresses a 

significant and deeply ingrained strand 

of public procurement policy. The 

Miller Act and the Davis-Bacon Act are 

of similar vintage. The DBA was enacted 

in 1931. The DBA amendments were 

enacted in 1935, almost simultaneously 

with the Miller Act. Through both 

statutes, Congress aimed to protect 

participants on government contracts 

from nonpayment by prime contractors 

and subcontractors. Thus, the same 

factors that the Federal Circuit found 

sufficient to apply the Christian 

doctrine to the Miller Act also apply to 

the DBA and suggest that the proposed 

operation-of-law regulation would be 

appropriate.115

The Department’s proposal, however, 

differs from the Christian doctrine in 

two critical respects. First, as noted 

above, the proposed language at § 5.5(e) 

would be paired with a contractor 

compensation provision similar to the 

existing provision in § 1.6(f). The 

Christian doctrine does not incorporate 

such protection for contractors, and as 

a result, can have the effect of shifting 

cost burdens from the government to the 

contractor. In K-Con, for example, the 

doctrine supported the government’s 

defense against a claim for equitable 

adjustment by the contractor. 908 F.3d 

at 724–28. 

Second, the Christian doctrine is 

effectively self-executing and renders 

contract clauses applicable by operation 

of law solely on the basis of the 

underlying requirement that they be 

inserted into covered contracts. The 

doctrine contains no specific 

mechanism through which the 

government can limit its application to 

avoid any unexpected or unjust 

results—other than simply deciding not 

to raise it as a defense or affirmative 

argument in litigation. The proposed 

provision here at § 5.5(e), on the other 

hand, would pair the enactment of the 

operation-of-law language with the 

traditional authority of the 

Administrator to waive retroactive 

enforcement or grant a variance, 

tolerance, or exemption from the 

regulatory requirement under 29 CFR 

1.6(f) and 5.14, which the Department 

believes will foster a more orderly and 

predictable process and reduce the 

likelihood of any unintended 

consequences. 

In proposing this new regulatory 

provision, the Department has 

considered the implications of 

Universities Research Ass’n, Inc. v. 

Coutu. In that case, the Supreme Court 

held that there was no implied private 

right of action for workers to sue under 

the Davis-Bacon Act—at least when the 

contract clauses were not included in 

the contract. Coutu, 450 U.S. at 768–69 

& nn.17, 19. The Court also stated that 

the workers could not rely on the 

Christian doctrine to read the missing 

DBA contract clause into the contract. 

Id. at 784 & n.38. The Department has 

carefully considered the Coutu decision, 

and for the reasons discussed below, has 

determined that the proposed regulation 

is consistent with Coutu and that the 

distinctions between the proposed 

regulation and the Christian doctrine 

address the concerns that animated the 

Coutu Court in that case. 

One of the Court’s fundamental 

concerns in Coutu was that an implied 

private right of action could allow 

parties to evade the Department of 

Labor’s review of whether a contract 

should be covered by the Act. The Court 

noted that there was at the time ‘‘no 

administrative procedure that expressly 

provides review of a coverage 

determination after the contract has 

been let.’’ 450 U.S. at 761 n.9.116 If an 

implied private right of action existed 

under those circumstances, private 

parties could effectively avoid raising 

any questions about coverage with the 

Department or with the contracting 

agency—and instead bring them directly 

to a Federal court to second-guess the 

administrative determinations. Id. at 

783–84. 

Another of the Court’s concerns was 

that such an implied private right of 

action would undermine Federal 

contractors’ reliance on the wage 

determinations that the Federal 

government had (or had not) 

incorporated into bid specifications. 

The Supreme Court noted that one of 

the purposes of the 1935 amendments to 

the DBA was to ensure that contractors 

could rely on the predetermination of 

wage rates that apply to each contract. 

450 U.S. at 776. If, after a contract had 


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117 In Blue & Gold, the National Park Service 

failed to include the SCA contract clauses in a 

contract that the Department of Labor later 

concluded was covered by the Act. The Federal 

Circuit denied the bid protest from a the losing 

bidder because ‘‘a party who has the opportunity 

to object to the terms of a government solicitation 

containing a patent error and fails to do so prior to 

the close of the bidding process waives its ability 

to raise the same objection subsequently in a bid 

protest action in the Court of Federal Claims.’’ 492 

F.3d at 1313. 

already been awarded, a court could 

find that a higher prevailing wage 

applied to that contract than had been 

previously determined, the contractor 

could lose money because of its 

mistaken reliance on the prior rates—all 

of which would undermine Congress’s 

intent. Id. at 776–77. 

The Department’s current proposed 

procedure would alleviate both of these 

concerns. As described above, the 

procedure differs from the Christian 

doctrine because—as under the existing 

regulation at § 1.6(f)—contractors will 

be compensated for any increase in 

costs caused by the government’s failure 

to properly incorporate the clauses or 

wage determinations. The proposed 

procedure therefore will not undermine 

contractors’ reliance on an initial 

determination by the contracting agency 

that the DBRA did not apply or that a 

wage determination with lower rates 

applied. 

Nor does the proposal risk creating an 

end-run around the administrative 

procedures set up by contracting 

agencies and the Department pursuant 

to Reorganization Plan No. 14. Instead, 

the operation-of-law provision would 

function as part of an administrative 

structure implemented by the 

Administrator and subject to the 

Administrator’s decision to grant a 

variance, tolerance, or exemption. Its 

enactment should not affect one way or 

another whether any implied private 

right of action exists under the statute. 

Executive Order 11246 provides a 

helpful comparator. In 1968, the 

Department promulgated the regulation 

clarifying that the Executive Order’s 

equal opportunity contract clause would 

be effective by ‘‘operation of the Order’’ 

regardless of whether it is physically 

incorporated into the contract. 41 CFR 

60–1.4(e). That regulation was upheld, 

and the Christian doctrine was also 

found to apply to the required equal 

opportunity contract clause. See Miss. 

Power & Light, 638 F.2d at 905–06. 

Nonetheless, courts have widely held 

that E.O. 11246 does not convey an 

implied private right of action. See, e.g., 

Utley v. Varian Assocs., Inc., 811 F.2d 

1279, 1288 (9th Cir. 1987). 

The Department has also considered 

whether the proposal would lead to an 

increase in bid protest litigation or 

expand the authority of the Court of 

Federal Claims or other contracting 

appeal tribunals to develop their own 

case law on the application of the DBRA 

without the input of the Department. In 

exploring this question, the Department 

considered proposing an alternative 

procedure in which the operation-of-law 

rule would only become effective after 

a determination by the Administrator or 

a contracting agency that a contract was 

in fact covered. The Department, 

however, does not believe that such an 

approach is necessary because both the 

GAO and the Federal Circuit maintain 

strict waiver rules that prohibit postaward bid protests based on errors or 

ambiguities in the solicitation. See NCS/ 

EML JV, LLC, B–412277, 2016 WL 

335854, at *8 n.10 (Comp. Gen. Jan. 14, 

2016) (citing GAO decisions); Blue & 

Gold Fleet, L.P. v. United States, 492 

F.3d 1308, 1312–13 (Fed. Cir. 2007).117

The proposal as currently drafted also 

would not affect the well-settled case 

law—developed after the Coutu 

decision—that only the Department of 

Labor has jurisdiction to resolve 

disputes arising out of the labor 

standards provisions of the contract. As 

part of the post-Coutu 1982 final rule, 

the Department enacted a provision at 

29 CFR 5.5(a)(9) that requires a disputes 

clause with that jurisdictional limitation 

to be included in all DBRA-covered 

contracts. See 47 FR 23660–61 (final 

rule addressing comments received on 

the proposal). The labor standards 

disputes clause creates an exception to 

the Contract Disputes Act of 1974 and 

effectively bars the Court of Federal 

Claims from deciding substantive 

matters related to the Davis-Bacon Act 

and Related Acts. See, e.g., Emerald 

Maint., Inc. v. United States, 925 F.2d 

1425, 1428–29 (Fed. Cir. 1991). Under 

the Department’s current operation-oflaw proposal, the disputes clause at 

§ 5.5(a)(9) would continue to be 

effective even when it has been omitted 

from a contract because the 

Department’s proposal applies the 

operation-of-law principle to all of the 

required contract clauses in § 5.5(a)— 

including § 5.5(a)(9). As a result, under 

the proposal, disputes regarding DBRA 

coverage or other related matters would 

continue to be heard only through the 

Department’s administrative process 

prior to any judicial review, and there 

is no reason to believe that the 

implementation of the operation-of-law 

provision would lead to a parallel body 

of case law in the Court of Federal 

Claims. 

Given all of these continued 

safeguards, the Department believes it is 

not necessary to expressly limit the 

proposed operation-of-law provision to 

be effective only after an administrative 

determination. However, in addition to 

input on the proposed regulatory text at 

§ 5.5(e), the Department also seeks input 

from commenters regarding the 

alternative proposal to require such a 

determination. Under that alternative, 

the operation-of-law provision would 

only become effective after a 

determination by the Administrator or a 

contracting agency that the contract 

clauses or wage determination was 

wrongly omitted. 

Regardless of whether the proposed 

operation-of-law language will be 

subject to a threshold requirement of an 

administrative determination, the 

provision would operate in tandem with 

the continued requirements that 

contracting agencies must insert the 

contract clause in full into any new 

contracts and into existing contracts by 

modification where the clause had been 

wrongly omitted. The Department 

proposes language to clarify that these 

parallel provisions are both effective, 

with proposed language in §§ 1.6(f), 

5.5(a)(1)(i), and 5.6(a)(1)(ii) that explains 

that contracting agencies continue to be 

required to insert the relevant clauses 

and wage determinations in full 

notwithstanding that the clauses and 

wage determinations are also effective 

by operation of law. As the clauses and 

applicable wage determination(s) will 

still be effective as a matter of law even 

if omitted from the contract, it will be 

advisable for contractors to promptly 

raise any such errors of omission with 

their contracting agencies. A 

contractor’s failure to raise such issues 

will not relieve the contractor from any 

of their obligations under the DavisBacon labor standards. See, e.g., 

Coleman Construction Co., ARB No. 15– 

002, 2016 WL 4238468, at *6 & n.40 

(June 8, 2016) (holding that ‘‘[t]he law 

is clear that, if a contract subject to 

Davis-Bacon lacks the wage 

determination, it is the employer’s 

obligation . . . to get it’’); 48 CFR 

52.222–52(c). 

Similarly, proposed § 5.5(d) also 

includes a parallel provision that 

clarifies that the clauses and wage 

determinations are equally effective if 

they are incorporated by reference, as a 

contract that contains a provision 

expressly incorporating the clauses and 

the applicable wage determination by 

reference may be tantamount to 

insertion in full under the FAR. See 48 

CFR 52.107, 52.252–2. In addition, 

independent of the FAR, the terms of a 

document appropriately incorporated by 

reference into a contract effectively bind 

the parties to that contract. See 11 

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(4th ed.) (‘‘Interpretation of several 

connected writings’’). 

These various proposed parallel 

regulatory provisions are consistent and 

work together. They require the best 

practice of physical insertion or 

modification of contract documents (or, 

where warranted, incorporation by 

reference), so as to provide effective 

notice to all interested parties, such as 

contract assignees, subcontractors, 

sureties, and employees and their 

representatives. At the same time, they 

create a safety net to ensure that where 

any mistakes are made in initial 

determinations, the prevailing wage 

required by statute will still be paid to 

the laborers and mechanics on covered 

projects. 

(2) § 1.6(f) Post-Award Correction of 

Wage Determinations 

In addition to the operation-of-law 

language at § 5.5(e), the Department 

proposes to make several changes to the 

current regulation at § 1.6(f) that 

contains the post-award procedure 

requiring contracting agencies to 

incorporate an omitted wage 

determination. First, as discussed above 

in section III.B.1.vi. of this NPRM 

(Section 1.6 Use and effectiveness of 

wage determinations), the Department 

proposes adding titles for each 

subsection in § 1.6 in order to improve 

readability of the section as a whole. 

The proposed title for § 1.6(f) is ‘‘Postaward determinations and procedures.’’ 

The Department also proposes dividing 

§ 1.6(f) into multiple subsections to 

improve the organization and 

readability of the important rules it 

articulates. 

At the beginning of the section, the 

Department proposes a new § 1.6(f)(1), 

which explains generally that if a 

contract subject to the labor standards 

provisions of the Acts referenced by 

§ 5.1 is entered into without the correct 

wage determination(s), the relevant 

agency must incorporate the correct 

wage determination into the contract or 

require its incorporation. The 

Department proposes to add language to 

§ 1.6(f)(1) expressly providing for an 

agency to incorporate the correct wage 

determination post-award ‘‘upon its 

own initiative’’ as well as upon the 

request of the Administrator. The 

current version of § 1.6(f) explicitly 

provides only for a determination by the 

Administrator that a correction must be 

made. Some contracting agencies had 

interpreted the existing language as 

precluding an action by a contracting 

agency alone—without action by the 

Administrator—to modify an existing 

contract to incorporate a correct wage 

determination. The Department now 

proposes the new language to clarify 

that the contracting agency can take 

such action alone. Where a contracting 

agency does intend to take such an 

action, proposed language at 

§ 1.6(f)(3)(iii) would require it to notify 

the Administrator of the proposed 

action. 

In the proposed reorganization of 

§ 1.6(f), the Department would locate 

the discussion of the Administrator’s 

determination that a correction is 

necessary in a new § 1.6(f)(2). The only 

change to the language of that 

subsection is not substantive. The 

current text of § 1.6(f) refers to the 

action that the Administrator may take 

as an action to ‘‘issue a wage 

determination.’’ However, in the 

majority of cases, where a wage 

determination was not included in the 

contract, the proper action by the 

Administrator will not be to issue a new 

or updated wage determination, as that 

term is used in § 1.6(c), but to identify 

the appropriate existing wage 

determination that applies to the 

contract. Thus, to eliminate any 

confusion, the Department proposes to 

amend the language in this subsection 

to describe the Administrator’s action as 

‘‘requir[ing] the agency to incorporate’’ 

the appropriate wage determination. To 

the extent that, in an exceptional case, 

the Department would need to ‘‘issue’’ 

a new project wage determination to be 

incorporated into the contract, the 

proposed new language would require 

the contracting agency to incorporate or 

require the incorporation of that newly 

issued wage determination. 

The Department also proposes to 

amend the language in § 1.6(f) that 

describes the potential corrective 

actions that an agency may take. In a 

nonsubstantive change, the Department 

proposes to refer to the wage 

determinations that must be newly 

incorporated as ‘‘correct’’ wage 

determinations instead of ‘‘valid’’ wage 

determinations. This is because the 

major problem addressed in § 1.6(f)—in 

addition to the failure to include any 

wage determination at all—is the use of 

the wrong wage determinations. Even 

while wrong for one contract, a wage 

determination may be valid if used on 

a different contract to which it properly 

applies. It is therefore more precise to 

describe a misused wage determination 

as incorrect rather than invalid. The 

proposed amendment would also add to 

the reference in the current regulation at 

§ 1.6(f) to ‘‘supplemental agreements’’ or 

‘‘change orders’’ as the methods for 

modifying contracts post-award to 

incorporate valid wage determinations. 

The Department, in a new § 1.6(f)(3), 

would instruct that agencies make such 

modifications additionally through the 

exercise of ‘‘any other authority that 

may be needed.’’ This language parallels 

the Department’s regulation at 29 CFR 

4.5 for similar circumstances under the 

SCA. 

The Department also proposes to 

make several changes to § 1.6(f) to 

clarify that the requirements apply 

equally to projects carried out with 

Federal financial assistance as they do 

to DBA projects. The proposed initial 

paragraph at § 1.6(f)(1) contains new 

language that states expressly that 

where an agency is providing Federal 

financial assistance, ‘‘the agency must 

ensure that the recipient or subrecipient of the Federal assistance 

similarly incorporates the correct wage 

determination(s) into its contracts.’’ 

Similarly, the reference to agencies’ 

responsibilities in proposed new 

§ 1.6(f)(3) requires an agency to 

terminate and resolicit the contract or to 

‘‘ensure’’ the incorporation (in the 

alternative to ‘‘incorporating’’ the 

correct wage determination itself)—in 

recognition that this language applies 

equally to direct procurement where the 

agency is a party to a DBA-covered 

contract and Related Acts where the 

agency must ensure that the relevant 

State or local agency incorporates the 

corrected wage determination into the 

covered contract. Finally, the 

Department also proposes to amend the 

requirement that the incorporation 

should be ‘‘in accordance with 

applicable procurement law’’ to instead 

reference ‘‘applicable law.’’ This change 

is intended to recognize that the 

requirements in § 1.6 apply also to 

projects executed with Federal financial 

assistance under the Related Acts, for 

which the Federal or State agency’s 

authority may not be subject to Federal 

procurement law. None of these 

proposed changes represent substantive 

changes, as the Department has 

historically applied § 1.6(f) equally to 

both DBA and Related Act projects. See, 

e.g., City of Ellsworth, ARB No. 14–042, 

at *6–8. 

In the new § 1.6(f)(3)(iv), the 

Department proposes to include the 

requirements from the existing 

regulations that contractors must be 

compensated for any change and that 

the incorporation must be retroactive to 

the beginning of the construction. That 

retroactivity requirement, however, is 

amended to include the qualification 

that the Administrator may direct 

otherwise. As noted above, the 

Administrator may make determinations 

of non-retroactivity on a case-by-case 

basis. In addition, consistent with the 

SCA regulation on post-award 

incorporation of wage determinations at 


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29 CFR 4.5(c), the Department proposes 

including language in a new 

§ 1.6(f)(3)(ii) to require that 

incorporation of the correct wage 

determination be accomplished within 

30 days of the Administrator’s request, 

unless the agency has obtained an 

extension. 

The Department also proposes to 

include new language at § 1.6(f)(3)(v), 

applying to Related Acts, instructing 

that the agency must suspend further 

payments or guarantees if the recipient 

refuses to incorporate the specified 

wage determination and that the agency 

must promptly refer the dispute to the 

Administrator for further proceedings 

under § 5.13. This language is a 

clarification and restatement of the 

existing enforcement regulation at 

§ 5.6(a)(1), which provides that no such 

payment or guarantee shall be made 

‘‘unless [the agency] ensures that the 

clauses required by § 5.5 and the 

appropriate wage determination(s) are 

incorporated into such contracts.’’ 

In proposed new language at 

§ 1.6(f)(3)(vi), the Department includes 

additional safeguards for the 

circumstances in which an agency does 

not retroactively incorporate the missing 

clauses or wage determinations and 

instead seeks to terminate the contract. 

The proposed language provides that 

before termination, the agency must 

withhold or cross-withhold sufficient 

funds to remedy any back wage liability 

or otherwise identify and obligate 

sufficient funds through a termination 

settlement agreement, bond, or other 

satisfactory mechanism. This language 

is consistent with the existing FAR 

provision at 48 CFR 49.112–2(c) that 

requires contracting officers to ascertain 

whether there are any outstanding labor 

violations and withhold sufficient funds 

if possible before forwarding the final 

payment voucher. It is also consistent 

with the language of the template 

termination settlement agreements at 48 

CFR 49.602–1 and 49.603–3 that seek to 

assure that any termination settlement 

agreement does not undermine the 

government’s ability to fully satisfy any 

outstanding contractor liabilities under 

the DBRA or other labor clauses. 

Finally, the Department includes a 

proposed provision at § 1.6(f)(4) that 

clarifies that the specific requirements 

of § 1.6(f) to physically incorporate the 

correct wage determination operate in 

addition to the proposed requirement in 

§ 5.5(e) that makes the correct wage 

determination applicable by operation 

of law. As discussed above, such 

amendment and physical incorporation 

(including incorporation by reference) is 

necessary in order to provide notice to 

all interested parties, such as contract 

assignees, subcontractors, sureties, and 

employees and their representatives. 

(3) § 5.6(a)(1) Post-Award 

Incorporation of Contract Clauses 

The Department proposes to revise 

§ 5.6(a)(1) to include language expressly 

providing a procedure for determining 

that the required contract clauses were 

wrongly omitted from a contract. As 

noted above, the Department has 

historically sought the retroactive 

incorporation of missing contract 

clauses by reference to the language 

regarding wage determinations in 

§ 1.6(f). The Department now proposes 

to eliminate any confusion by creating 

a separate procedure at § 5.6(a)(1)(ii) 

that applies specifically to missing 

contract clauses in a similar manner as 

§ 1.6(f) continues to apply to missing or 

incorrect wage determinations. 

The Department proposes to revise 

§ 5.6(a)(1) by renumbering the existing 

regulatory text § 5.6(a)(1)(i), and adding 

an additional paragraph, (a)(1)(ii), to 

include the provision clarifying that 

where a contract is awarded without the 

incorporation of the required DavisBacon labor standards clauses required 

by § 5.5, the agency must incorporate 

the clauses—or require their 

incorporation. This includes 

circumstances where the agency does 

not award a contract directly but instead 

provides funding assistance for such a 

contract; in such instances, the Federal 

agency, or other agency where 

appropriate, must ensure that the 

recipient or sub-recipient of the Federal 

assistance incorporates the required 

labor standards clauses retroactive to 

the date of contract award, or the start 

of construction if there is no award. The 

paragraph contains a similar set of 

provisions as § 1.6(f), with its proposed 

amendments—including that the 

incorporation must be retroactive unless 

the Administrator directs otherwise; 

that retroactive incorporation is 

required by the request of the 

Administrator or upon the agency’s own 

initiative; that incorporation must take 

place within 30 days of a request by the 

Administrator, unless an extension is 

granted; that the agency must withhold 

or otherwise obligate sufficient funds to 

satisfy back wages before any contract 

termination; and that the contractor 

should be compensated for any increase 

in costs resulting from any change 

required by the paragraph. 

The Department also proposes to 

clarify the application of the current 

regulation at § 5.6(a)(1), which states 

that no payment, advance, grant, loan, 

or guarantee of funds will be approved 

unless the Federal agency ensures that 

the funding recipient or sub-recipient 

has incorporated the required clauses 

into any contract receiving the funding. 

Similar to the proposed provision in 

§ 1.6(f)(3)(v), a new proposed provision 

at § 5.6(a)(1)(ii)(C) would explain that 

such a required suspension also applies 

if the funding recipient refuses to 

retroactively incorporate the required 

clauses. In such circumstances, the 

issue must be referred promptly to the 

Administrator for resolution. 

Similar to the proposed provision at 

§ 1.6(f)(4), the Department also proposes 

a provision at § 5.6(a)(1)(ii)(E) that 

explains that the physical-incorporation 

requirements of § 5.6(a)(1)(ii) would 

operate in tandem with the proposed 

language at § 5.5(e) making the contract 

clauses and wage determinations 

effective by operation of law. 

The proposed changes to § 5.6 do not 

impose any additional requirements on 

Federal agencies, as the existing 

regulation at § 5.6 clearly states that the 

Federal agency is responsible for 

incorporating the required clauses into 

its own contracts subject to the DavisBacon labor standards and for ensuring 

the incorporation of the required clauses 

into contracts subject to the Davis-Bacon 

labor standards entered into by the 

Federal agency’s funding recipients. 

Moreover, as noted above, this 

additional language is analogous to the 

existing language at 29 CFR 1.6(f) under 

which the Department historically has 

requested the incorporation of missing 

contract clauses. 

The proposed changes clarify that the 

requirement to incorporate the DavisBacon labor standards clauses is an 

ongoing responsibility that does not end 

upon contract award, and the changes 

expressly state the Department’s 

longstanding practice of requiring the 

relevant agency to retroactively 

incorporate, or ensure retroactive 

incorporation of, the required clauses in 

such circumstances. As discussed 

above, such clarification is warranted 

because agencies occasionally have 

expressed confusion about—and even 

questioned whether they possess—the 

authority to incorporate, or ensure the 

incorporation of, the required contract 

clauses after a contract has been 

awarded or construction has started. 

The Department’s proposal similarly 

makes clear that while agencies must 

retroactively incorporate the required 

clauses upon the request of the 

Administrator, agencies also have the 

authority to make such changes on their 

own initiative when they discover that 

an error has been made. The proposed 

changes also eliminate any confusion of 

the recipients of Federal funding as to 

the extent of the Federal funding 

agency’s authority to require such 


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118There are several terms referring to the same 

list (e.g., ineligible list, debarment list, debarred 

bidders list) and the terms for this list may continue 

to change over time. 

retroactive incorporation in federally 

funded contracts subject to the DavisBacon labor standards. Finally, the 

proposed changes do not alter the 

provisions of 29 CFR 1.6(g), including 

its provisos. 

Retroactive incorporation of the 

required contract clauses ensures that 

agencies take every available step to 

ensure that workers on covered 

contracts are paid the prevailing wages 

that Congress intended. The Department 

welcomes comments on all aspects of 

this proposal. 

xxi. Debarment 

In accordance with the Department’s 

goal of updating and modernizing the 

DBA and Related Act regulations, as 

well as enhancing the implementation 

of Reorganization Plan No. 14 of 1950, 

the Department proposes a number of 

revisions to the debarment regulations 

that are intended both to promote 

consistent enforcement of the DavisBacon labor standards provisions and to 

clarify the debarment standards and 

procedures for the regulated 

community, adjudicators, investigators, 

and other stakeholders. 

The regulations implementing the 

DBA and the Related Acts currently 

reflect different standards for 

debarment. Since 1935, the DBA has 

mandated 3-year debarment ‘‘of persons 

. . . found to have disregarded their 

obligations to employees and 

subcontractors.’’ 40 U.S.C. 3144(b)(1) 

and (b)(2) (emphasis added); see also 29 

CFR 5.12(a)(1) and (2) (setting forth the 

DBA’s ‘‘disregard of obligations’’ 

standard). Although the Related Acts 

themselves do not contain debarment 

provisions, since 1951, their 

implementing regulations have imposed 

a heightened standard for debarment for 

violations under the Related Acts, 

providing that ‘‘any contractor or 

subcontractor . . . found . . . to be in 

aggravated or willful violation of the 

labor standards provisions’’ of any 

DBRA will be debarred ‘‘for a period not 

to exceed 3 years.’’ 29 CFR 5.12(a)(1) 

(emphasis added). The Department 

proposes to harmonize the DBA and the 

Related Act debarment-related 

regulations by applying the 

longstanding DBA debarment standard 

and related provisions to the Related 

Acts as well. Specifically, in order to 

create a uniform set of substantive and 

procedural requirements for debarment 

under the DBA and the Related Acts, the 

Department proposes five changes to the 

Related Act debarment regulations so 

that they mirror the provisions 

governing DBA debarment. 

First, the Department proposes to 

adopt the DBA statutory debarment 

standard—disregard of obligations to 

employees or subcontractors—for all 

debarment cases and to eliminate the 

Related Acts’ regulatory ‘‘aggravated or 

willful’’ debarment standard. Second, 

the Department proposes to adopt the 

DBA’s mandatory 3-year debarment 

period for Related Act cases and to 

eliminate the process under the Related 

Acts regulations for early removal from 

the ineligible list (also known as the 

debarment list 118). Third, the 

Department proposes to expressly 

permit debarment of ‘‘responsible 

officers’’ under the Related Acts. Fourth, 

the Department proposes to clarify that 

under the Related Acts as under the 

DBA, entities in which debarred entities 

or individuals have an ‘‘interest’’ may 

be debarred. Related Acts regulations 

currently require a ‘‘substantial 

interest.’’ Finally, the Department 

proposes to make the scope of 

debarment under the Related Acts 

consistent with the scope of debarment 

under the DBA by providing, in 

accordance with the current scope of 

debarment under the DBA, that Related 

Acts debarred persons and firms may 

not receive ‘‘any contract or subcontract 

of the United States or the District of 

Columbia,’’ as well as ‘‘any contract or 

subcontract subject to the labor 

standards provisions of the statutes 

listed in § 5.1.’’ See 29 CFR 5.12(a)(1) 

and (2). 

(A) Relevant Legal Authority 

The 1935 amendments to the DBA 

gave the Secretary authority to enforce— 

not just set—prevailing wages, 

including through the remedy of 

debarment. See Coutu, 450 U.S. at 758 

& n.3, 759, 776; see also S. Rep. No. 74– 

332, pt. 3, at 11, 14–15 (1935). Since 

then, the DBA has required 3-year 

debarment of persons or firms that have 

been found to ‘‘have disregarded their 

obligations to employees and 

subcontractors.’’ 40 U.S.C. 3144(b) 

(formerly 40 U.S.C. 276a–2 and known 

as section 3(a) of the DBA). The DBA 

also mandates debarment of entities in 

which debarred persons or firms have 

an ‘‘interest.’’ 40 U.S.C. 3144(b)(2). 

Approximately 15 years later, the 

Truman Administration developed and 

Congress accepted Reorganization Plan 

No. 14 of 1950, a comprehensive plan to 

improve Davis-Bacon enforcement and 

administration. The Reorganization Plan 

provided that ‘‘[i]n order to assure 

coordination of administration and 

consistency of enforcement’’ of the 

DBRA by the agencies who are 

responsible for administering them, the 

Secretary of Labor was empowered to 

‘‘prescribe appropriate standards, 

regulations, and procedures, which 

shall be observed by these agencies.’’ 

Reorganization Plan No. 14 of 1950, 5 

U.S.C. app. 1. In transmitting the 

Reorganization Plan to Congress, 

President Truman observed that ‘‘the 

principal objective of the plan is more 

effective enforcement of labor 

standards’’ with ‘‘more uniform and 

more adequate protection for workers 

through the expenditures made for the 

enforcement of the existing legislation.’’ 

Id. (1950 Special Message to Congress). 

Shortly after Reorganization Plan No. 

14 of 1950 was adopted, the Department 

promulgated regulations adding ‘‘a new 

Part 5,’’ effective July 1, 1951. 16 FR 

4430, 4430. These regulations added the 

‘‘aggravated or willful’’ debarment 

standard for the Related Acts. Id. at 

4431. The preamble to that final rule 

explained that adding the new part 5 

was to comply with Reorganization Plan 

No. 14 of 1950’s directive to prescribe 

standards, regulations, and procedures 

‘‘to assure coordination of 

administration and consistency of 

enforcement.’’ Id. at 4430. Since then, 

the two debarment standards—disregard 

of obligations in DBA cases and willful 

or aggravated violations in Related Acts 

cases—have co-existed, but with 

challenges along the way that the 

Department seeks to resolve through 

this proposal. 

(B) Proposed Regulatory Revisions 

(1) Debarment Standard 

a. Proposed Change to Debarment 

Standard 

As noted previously, the DBA 

generally requires the payment of 

prevailing wages to laborers and 

mechanics working on contracts with 

the Federal Government or the District 

of Columbia for the construction of 

public buildings and public works. 40 

U.S.C. 3142(a). In addition, Congress 

has included DBA prevailing wage 

provisions in numerous Related Acts 

under which Federal agencies assist 

construction projects through grants, 

loans, guarantees, insurance, and other 

methods. The same contract clauses are 

incorporated into DBA—and Related 

Act—covered contracts, and the laws 

apply the same labor standards 

protections (including the obligation to 

pay prevailing wages) to laborers and 

mechanics without regard to whether 

they are performing work on a project 

subject to the DBA or one of the Related 

Acts. Indeed, not only are some projects 

subject to the requirements of both the 


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119For the same reason, except in unusual 

circumstances, it would generally not be 

appropriate to debar a contractor for violations in 

circumstances where the contracting agency 

omitted the contract clause and the clause was 

subsequently incorporated retroactively or found to 

be effective by operation of law. 

DBA and one of the Related Acts due to 

the nature and source of Federal 

funding, but also the great majority of 

DBA-covered projects are also subject to 

CWHSSA, one of the Related Acts. 

Against this backdrop, there is no 

apparent need for a different level of 

culpability for Related Acts debarment 

than for DBA debarment. The sanction 

for failing to compensate covered 

workers in accordance with applicable 

prevailing wage requirements should 

not turn on the source or form of 

Federal funding. Nor is there any 

principled reason that it should be 

easier for prime contractors, 

subcontractors, and their responsible 

officials to avoid debarment in Related 

Acts cases. Accordingly, the Department 

proposes to revise the governing 

regulations so that conduct that 

warrants debarment on DBA 

construction projects would also 

warrant debarment on Related Acts 

projects. This proposal fits within the 

Department’s well-established authority 

to adopt regulations governing 

debarment of Related Acts contractors. 

See, e.g., Janik Paving & Constr., 828 

F.2d at 91; Copper Plumbing & Heating 

Co. v. Campbell, 290 F.2d 368, 372–73 

(D.C. Cir. 1961). 

The potential benefits of adopting a 

single, uniform debarment standard 

outweigh any benefits of retaining the 

existing dual-standard framework. Other 

than debarment, contractors who violate 

the DBA and Related Acts run the risk 

only of having to pay back wages, often 

long after violations occurred. Even if 

these violations are discovered or 

disclosed through an investigation or 

other compliance action, contractors 

that violate the DBA or Related Acts can 

benefit from the use of workers’ wages, 

an advantage which can allow such 

contractors to underbid more lawabiding contractors. If the violations 

never come to light, such contractors 

pocket wages that belong to workers. 

Strengthening the remedy of debarment 

encourages such unprincipled 

contractors to comply with Davis-Bacon 

prevailing wage requirements by 

expanding the reach of this remedy 

when they do not. Facchiano Constr. 

Co. v. U.S. Dep’t of Labor, 987 F.2d 206, 

214 (3d Cir. 1993) (observing that 

debarment ‘‘may in fact ‘be the only 

realistic means of deterring contractors 

from engaging in willful [labor] 

violations based on a cold weighing of 

the costs and benefits of 

noncompliance’ ’’ (quoting Janik Paving 

& Constr., 828 F.2d at 91)). 

In proposing a unitary debarment 

standard, the Department intends that 

well-established case law applying the 

DBA ‘‘disregard of obligations’’ 

debarment standard would now also 

apply to Related Acts debarment 

determinations. Under this standard, as 

a 2016 ARB decision explained, ‘‘DBA 

violations do not, by themselves, 

constitute a disregard of an employer’s 

obligations,’’ and, to support debarment, 

‘‘evidence must establish a level of 

culpability beyond negligence’’ and 

involve some degree of intent. Interstate 

Rock Prods., Inc., ARB No. 15–024, 2016 

WL 5868562, at *4 (Sept. 27, 2016) 

(footnotes omitted). For example, the 

underpayment of prevailing wages, 

coupled with the falsification of 

certified payrolls, constitute a disregard 

of a contractor’s obligations sufficient to 

establish the requisite level of ‘‘intent’’ 

under the DBA debarment provisions. 

See id. Bad faith and gross negligence 

regarding compliance have also been 

found to constitute a disregard of DBA 

obligations. See id.119 The Department’s 

proposal to apply the DBA ‘‘disregard of 

obligations’’ standard as the sole 

debarment standard would maintain 

safeguards for law-abiding contractors 

and responsible officers by retaining the 

bedrock principle that DBA violations, 

by themselves, generally do not 

constitute a sufficient predicate for 

debarment. Moreover, the determination 

of whether debarment is warranted will 

continue to be based on a consideration 

of the particular facts found in each 

investigation and to include the same 

procedures and review process that are 

currently in place to determine whether 

debarment is to be pursued. 

For these reasons and those discussed 

in more detail below, the Department 

proposes to harmonize debarment 

standards by reorganizing § 5.12. As 

proposed, paragraph (a)(1) sets forth the 

disregard of obligations debarment 

standard, which would apply to both 

DBA and Related Acts violations. The 

proposed changes accordingly remove 

the ‘‘willful or aggravated’’ language 

from § 5.12, with conforming changes 

proposed in 29 CFR 5.6(b) and 5.7(a). 

Proposed paragraph (a)(2) combines the 

parts of current §§ 5.12(a)(1) and (a)(2) 

concerning the different procedures for 

effectuating debarment under the DBA 

and Related Acts. 

b. Impacts of Proposed Debarment 

Standard Change 

Because behavior that is willful or 

aggravated is also a disregard of 

obligations, in many instances the 

proposed harmonization of the 

debarment standards would apply to 

conduct that under the current 

regulations would already be debarrable 

under both the DBA and Related Acts. 

For example, falsification of certified 

payrolls to simulate compliance with 

Davis-Bacon labor standards has long 

warranted debarment under both the 

DBA and Related Acts. See, e.g., R.J. 

Sanders, Inc., WAB No. 90–25, 1991 WL 

494734, at *1–2 (Jan. 31, 1991) (DBA); 

Coleman Constr. Co., ARB No. 15–002, 

2016 WL 4238468, at *11 (Related Acts). 

Kickbacks also warrant debarment 

under the DBA and Related Acts. See, 

e.g., Killeen Elec. Co., Inc., WAB No. 

87–49, 1991 WL 494685, at *5–6 (DBA 

and Related Act). In fact, any violation 

that meets the ‘‘willful or aggravated’’ 

standard would necessarily also be a 

disregard of obligations. 

Under the proposed revisions, the 

subset of violations that would only 

have been debarrable under the DBA 

disregard of obligations standard now 

will be potentially subject to debarment 

under both the DBA and Related Acts. 

The ARB recently discussed one 

example of this type of violation, stating 

that intentional disregard of obligations 

‘‘may . . . include acts that are not 

willful attempts to avoid the 

requirements of the DBA’’ since 

contractors may not avoid debarment 

‘‘by asserting that they did not 

intentionally violate the DBA because 

they were unaware of the Act’s 

requirements.’’ Interstate Rock Prods., 

ARB No. 15–024, 2016 WL 5868562, at 

*4 (citations omitted). Similarly, 

‘‘failures to set up adequate procedures 

to ensure that their employees’ labor 

was properly classified,’’ which might 

not have been found to be willful or 

aggravated Related Act violations, were 

debarrable under the DBA disregard of 

obligations standard. Id. at *8. Under 

the Department’s proposed revisions to 

§ 5.12, these types of violations could 

now result in debarment in Related Acts 

as well as DBA cases. Additionally, 

under the disregard of obligations 

standard, prime contractors and uppertier subcontractors may be debarred if 

they fail to flow down the required 

contract clauses into their lower-tier 

subcontracts as required by § 5.5(a)(6), 

or if they otherwise fail to ensure that 

their subcontractors are in compliance 

with the Davis-Bacon labor standards 

provisions. See 29 CFR 5.5(a)(6)–(a)(7). 

See Ray Wilson Co., ARB No. 02–086, 

2004 WL 384729, at *10 (affirming 

debarment under DBA of upper-tier 

subcontractor and its principals because 

of subcontractor’s ‘‘abdication from— 

and, thus, its disregard of—its 


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obligations to employees of . . . its own 

lower-tier subcontractor’’). 

c. Benefits of Proposed Debarment 

Standard Change 

i. Improved Compliance and 

Enforcement 

Applying the DBA’s disregard of 

obligations debarment standard in a 

uniform, consistent manner would 

advance the purpose of the DBA, ‘‘ ‘a 

minimum wage law designed for the 

benefit of construction workers.’ ’’ Abhe 

& Svoboda, Inc. v. Chao, 508 F.3d 1052, 

1055 (D.C. Cir. 2007) (quoting 

Binghamton Const. Co., 347 U.S. at 178). 

Both the DBA statutory and the Related 

Acts regulatory debarment sanctions are 

intended to foster compliance with 

labor standards. Interstate Rock 

Products, ARB No. 15–024, 2016 WL 

5868562, at *8 (‘‘Debarment has 

consistently been found to be a remedial 

rather than punitive measure so as to 

encourage compliance and discourage 

employers from adopting business 

practices designed to maximize profits 

by underpaying employees in violation 

of the Act.’’ (citations omitted)); Howell 

Constr., Inc., WAB No. 93–12, 1994 WL 

269361, at *7 (May 31, 1994). Using the 

disregard of obligations debarment 

standard for all DBA and DBRA work 

would enhance enforcement of and 

compliance with Davis-Bacon labor 

standards in multiple ways. 

First, it would better enlist the 

regulated community in Davis-Bacon 

enforcement by increasing their 

incentive to comply with DBA 

standards. See, e.g., Facchiano Constr., 

987 F.2d at 214 (‘‘Both § 5.12(a)(1) and 

§ 5.12(a)(2) are designed to ensure the 

cooperation of the employer, largely 

through self-enforcement.’’); Brite 

Maint. Corp., WAB No. 87–07, 1989 WL 

407462, at *2 (May 12, 1989) 

(debarment is a ‘‘preventive tool to 

discourage violation[s]’’). 

Second, applying the disregard of 

obligations standard to Related Act 

cases will serve the important public 

policy of holding contractors’ 

responsible officials accountable for 

non-compliance in a more consistent 

manner, regardless of whether they are 

performing on a Federal or federally 

funded project. Responsible officials 

currently may be debarred under both 

the DBA and the Related Acts. See, e.g., 

P.B.M.C., Inc., WAB No. 87–57, 1991 

WL 494688, at *7 (Feb. 8, 1991) (stating 

that ‘‘Board precedent does not permit 

a responsible official to avoid 

debarment by claiming that the labor 

standards violations were committed by 

agents or employees of the firm’’ in 

Related Act case); P.J. Stella Constr. 

Corp., WAB No. 80–13, 1984 WL 

161738, at *3 (Mar. 1, 1984) (affirming 

DBA debarment recommendation 

because ‘‘an employer cannot take cover 

behind actions of his inexperienced 

agents or representatives or the 

employer’s own inexperience in 

fulfilling the requirements of 

government construction contracts’’); 

see also Howell Constr., Inc., WAB No. 

93–12, 1994 WL 269361, at *7 (DBA 

case) (debarment could not foster 

compliance if ‘‘corporate officials . . . 

are permitted to delegate . . . 

responsibilities . . . , [and] to delegate 

away any and all accountability for any 

wrong doing’’). Applying a unitary 

debarment standard would further 

incentivize compliance by all 

contractors and responsible officers. 

ii. Greater Consistency and Clarity 

The Department also believes that 

applying the DBA debarment and 

debarment-related standards to all 

Related Act prevailing wage cases 

would eliminate confusion, and 

attendant litigation, that have resulted 

from erroneous and inconsistent 

application of the two different 

standards. The incorrect debarment 

standard has been applied in various 

cases over the years, continuing to the 

present, notwithstanding the ARB’s 

repeated clarification. See, e.g., J.D. 

Eckman, Inc., ARB No. 2017–0023, 2019 

WL 3780904, at *3 (July 9, 2019) (ALJ 

applied inapplicable DBA standard 

rather than applicable aggravated or 

willful standard; legal error of ALJ 

required remand for consideration of 

debarment under the correct standard); 

Coleman Constr. Co., ARB No. 15–002, 

2016 WL 4238468, at *9–11 (noting that 

the ALJ had applied the wrong 

debarment standard but concluding that 

the ALJ’s ‘‘conflat[ion of the] two 

different legal standards’’ was harmless 

error under the circumstances). Most 

recently, the ARB vacated and 

remanded an ALJ’s decision to debar a 

subcontractor and its principal under 

the DBA, noting that, even though the 

Department had not argued that the 

DBA applied, the ALJ had applied the 

incorrect standard because ‘‘the contract 

was for a construction project of a non- 

[F]ederal building that was funded by 

the U.S. Government but did not 

include the United States as a party.’’ 

Jamek Eng’g Servs., Inc., ARB No. 2020– 

0043, 2021 WL 2935807, at *8 (June 23, 

2021). 

Additionally, the ‘‘aggravated or 

willful’’ Related Acts standard has been 

interpreted inconsistently over the past 

decades. In some cases, the ARB has 

required actual knowledge of violations, 

while in others it has applied (or at least 

recited with approval) a less stringent 

standard that encompasses intentional 

disregard or plain indifference to the 

statutory requirements but does not 

require actual knowledge of the 

violations. Compare J.D. Eckman, Inc., 

ARB No. 2017–0023, 2019 WL 3780904, 

at *3 (requiring actual knowledge or 

awareness of the violation) and A. Vento 

Constr., WAB No. 87–51, 1990 WL 

484312, at *3 (Oct. 17, 1990) (aggravated 

or willful violations are ‘‘intentional, 

deliberate, knowing violations of the 

[Related Acts’] labor standards 

provisions’’) with Fontaine Bros., Inc., 

ARB No. 96–162, 1997 WL 578333, at *3 

(Sept. 16, 1997) (stating in Related Act 

case that ‘‘mere inadvertent or negligent 

conduct would not warrant debarment, 

[but] conduct which evidences an intent 

to evade or a purposeful lack of 

attention to, a statutory responsibility 

does’’ and that ‘‘[b]lissful ignorance is 

no defense to debarment’’); see also 

Pythagoras Gen. Cont. Corp., ARB Nos. 

08–107, 09–007, 2011 WL 1247207, at 

*12 (‘‘[A] ‘willful’ violation 

encompasses intentional disregard or 

plain indifference to the statutory 

requirements.’’), aff’d sub. nom. on 

other grounds Pythagoras Gen. Cont. 

Corp. v. U.S. Dept. of Labor, 926 F. 

Supp. 2d 490 (S.D.N.Y. 2013). 

The Department believes that a single 

debarment standard would provide 

consistency for the regulated 

community. Under the proposed single 

‘‘disregard of obligations’’ debarment 

standard, purposeful inattention and 

gross negligence with regard to DavisBacon labor standards obligations—as 

well as actual knowledge of or 

participation in violations—could 

warrant debarment. The Department 

would continue to carefully consider all 

of the facts involved in determining 

whether a particular contractor’s actions 

meet the proposed single standard. 

(2) Length of Debarment Period 

The Department also proposes to 

revise § 5.12 (see proposed § 5.12(a)(1) 

and (2)) to make 3-year debarment 

mandatory under both the DBA and 

Related Acts and to eliminate the 

regulatory provision permitting early 

removal from the debarment list under 

the Related Acts. 

As noted above, since 1935, the DBA 

has mandated a 3-year debarment of 

contractors whose conduct has met the 

relevant standard. In 1964, the 

Department added two regulatory 

provisions that permit Related Acts 

debarment for less than 3 years as well 

as early removal from the debarment 

list. According to the final rule 

preamble, the Department added these 

provisions ‘‘to improve the debarment 


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120See 29 CFR 5.12(a)(1) (‘‘shall be ineligible for 

a period not to exceed 3 years (from the date of 

publication by the Comptroller General of the name 

or names of said contractor or subcontractor on the 

ineligible list’’ (emphasis added)); 29 CFR 5.12(c) 

(‘‘Any person or firm debarred under paragraph 

(a)(1) of this section may in writing request removal 

from the debarment list after six months from the 

date of publication by the Comptroller General of 

such person or firm’s name on the ineligible list.’’ 

(emphasis added)). 

provisions under Reorganization Plan 

No. 14 of 1950 by providing for a 

flexible period of debarment up to three 

years and by providing for removal from 

the debarred bidders list upon a 

demonstration of current 

responsibility.’’ 29 FR 95. 

The Department’s experience over the 

nearly 60 years since then has shown 

that those Related Act regulatory 

provisions that differ from the DBA 

standard have not improved the 

debarment process for any of its 

participants. Rather, they have added 

another element of confusion and 

inconsistency to the administration and 

enforcement of the DBA and Related 

Acts. For example, contractors and 

subcontractors have been confused 

about which provision applies. See, e.g., 

Bob’s Constr. Co., Inc., WAB No. 87–25, 

1989 WL 407467, at *1 (May 11, 1989) 

(stating that ‘‘[t]he [DBA] does not 

provide for less than a 3-year 

debarment’’ in response to contractor’s 

argument that ‘‘if the Board cannot 

reverse the [ALJ’s DBA] debarment 

order, it should consider reducing the 3- 

year debarment.’’). 

Requiring a uniform 3-year debarment 

period would reduce confusion. 

Although the regulations currently 

provide for an exception to 3-year 

debarment, debarment in Related Acts 

cases is usually, but not always, for 3 

years. At times, the WAB has treated a 

3-year debarment period as presumptive 

and therefore has reversed ALJ 

decisions imposing debarment for fewer 

than 3 years. See, e.g., Brite Maint. 

Corp., WAB No. 87–07, at *1, *3 

(imposing a 3-year debarment instead of 

the 2-year debarment ordered by the 

ALJ); Early & Sons, Inc., WAB No. 86– 

25, at *1–2 (same); Warren E. Manter 

Co., Inc., WAB No. 84–20, 1985 WL 

167228, at *2–3 (June 21, 1985) (same). 

Under current case law, ‘‘aggravated or 

willful’’ violations of the Related Acts 

labor standards provisions warrant a 

three-year debarment period ‘‘absent 

extraordinary circumstances.’’ A. Vento 

Constr., WAB No. 87–51, 1990 WL 

484312, at *6 (emphasis added). ALJs 

have grappled with what constitutes 

‘‘extraordinary circumstances,’’ and 

when to consider the factors outlined in 

the DBRA early removal process. Id.; see 

also current 29 CFR 5.12(a)(1) and 

(c).120 The Department believes that 

setting a uniform 3-year debarment 

period would provide clarity and 

promote consistency. 

Further, the Department has 

concluded that in instances—usually 

decades ago—when debarment for a 

period of less than 3 years was 

warranted, it has not improved the 

debarment process or compliance. See, 

e.g., Rust Constr. Co., Inc., WAB No. 87– 

15, 1987 WL 247054, at *2 (Oct. 2, 1987) 

(1-year debarment), aff’d sub nom. Rust 

Constr. Co., Inc. v. Martin, 779 F. Supp. 

1030, 1031–32 (E.D. Mo. 1992) 

(affirming WAB’s imposition of 1-year 

debarment instead of no debarment, 

noting ‘‘plaintiffs could have easily been 

debarred for three years.’’); Progressive 

Design & Build Inc., WAB No. 87–31, 

1990 WL 484308, at *3 (Feb. 21, 1990) 

(18-month debarment); Morris 

Excavating Co., Inc., WAB No. 86–27, 

1987 WL 247046, at *1 (Feb. 4, 1987) (6- 

month, instead of no, debarment). 

For the above reasons, the Department 

proposes to modify the period of 

Related Acts debarment to mirror the 

DBA’s mandatory 3-year debarment 

when contractors are found to have 

disregarded their obligations to workers 

or subcontractors. 

The Department also proposes to 

eliminate the provision at 29 CFR 

5.12(c) that allows for Related Acts 

contractors and subcontractors the 

possibility of early removal from the 

debarment list. Just as Related Acts 

debarment for fewer than 3 years has 

rarely been permitted, early removal 

from the debarment list has seldom been 

requested, and has been granted even 

less often. The Department’s experience 

has shown that the possibility of early 

removal from the debarment list has not 

improved the debarment process. 

Likewise, the ARB and WAB do not 

appear to have addressed early removal 

for decades. At that time, the ARB and 

WAB affirmed denials of early removal 

requests. See Atlantic Elec. Servs., AES, 

Inc., ARB No. 96–191, 1997 WL 303981, 

at *1–2 (May 28, 1997); Fred A. 

Nemann, WAB No. 94–08, 1994 WL 

574114, at *1, 3 (June 27, 1994). Around 

the same time, early removal was 

affirmed on the merits in only one case. 

See IBEW Loc. No. 103, ARB No. 96– 

123, 1996 WL 663205, at *4–6 (Nov. 12, 

1996). Additionally, the early-removal 

provision has caused confusion among 

judges and the regulated community 

concerning the proper debarment 

standard. For example, an ALJ 

erroneously relied on the regulation for 

early relief from Related Acts debarment 

in recommending that a DBA contractor 

not be debarred. Jen-Beck Assocs., Inc., 

WAB No. 87–02, 1987 WL 247051, at 

*1–2 (July 20, 1987) (remanding case to 

ALJ for a decision ‘‘in accordance with 

the proper standard for debarment for 

violations of the [DBA]’’). Accordingly, 

the Department proposes to amend 

§ 5.12 by deleting paragraph (c) and 

renumbering the remaining paragraph to 

accommodate this revision. 

(3) Debarment of Responsible Officers 

The Department also proposes to 

revise 29 CFR 5.12 to expressly state 

that responsible officers of both DBA 

and Related Acts contractors and 

subcontractors may be debarred if they 

disregard obligations to workers or 

subcontractors. The purpose of 

debarring individuals along with the 

entities in which they are, for example, 

owners, officers, or managers is to close 

a loophole where such individuals 

could otherwise continue to receive 

Davis-Bacon contracts by forming or 

controlling another entity that was not 

debarred. The current regulations 

mention debarment of responsible 

officers only in the paragraph 

addressing the DBA debarment 

standard. See 29 CFR 5.12(a)(2). But it 

is well-settled that they can be debarred 

under both the DBA and Related Acts. 

See Facchiano Constr. Co., 987 F.2d at 

213–14 (noting that debarment of 

responsible officers is ‘‘reasonable in 

furthering the remedial goals of the 

Davis-Bacon Act and Related Acts’’ and 

that there is ‘‘no rational reason for 

including debarment of responsible 

officers in one regulation, but not the 

other’’); Hugo Reforestation, Inc., ARB 

No. 99–003, 2001 WL 487727, at *12 

(Apr. 30, 2001) (CWHSSA; citing 

Related Acts cases); see also Coleman 

Constr. Co., ARB No. 15–002, 2016 WL 

4238468, at *12. Thus, by expressly 

stating that responsible officers may be 

debarred under both the DBA and 

Related Acts, this proposed revision is 

consistent with current law. The 

Department intends that Related Acts 

debarment of individuals will continue 

to be interpreted in the same way as 

debarment of DBA responsible officers 

has been interpreted. 

(4) Debarment of Other Entities 

The Department proposes another 

revision so that the Related Acts 

regulations mirror the DBA regulations 

not only in practice, but also in letter. 

Specifically, the Department proposes to 

revise 29 CFR 5.12(a)(1) (with 

conforming changes in 5.12 and 

elsewhere in part 5) to state that ‘‘any 

firm, corporation, partnership, or 

association in which such contractor, 

subcontractor, or responsible officer has 


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an interest’’ must be debarred under the 

Related Acts, as well as the DBA. The 

DBA states that ‘‘No contract shall be 

awarded to persons appearing on the list 

or to any firm, corporation, partnership, 

or association in which the persons 

have an interest . . .’’ 40 U.S.C. 

3144(b)(2) (emphasis added); see also 29 

CFR 5.12(a)(2). In contrast, the current 

regulations for Related Acts require 

debarment of ‘‘any firm, corporation, 

partnership, or association in which 

such contractor or subcontractor has a 

substantial interest.’’ 29 CFR 5.12(a)(1) 

(emphasis added); see also 29 CFR 

5.12(b)(1), (d). 

The 1982 final rule preamble for these 

provisions indicates that the 

determination of ‘‘interest’’ (DBA) and 

‘‘substantial interest’’ (Related Acts) are 

intended to be the same: ‘‘In both cases, 

the intent is to prohibit debarred 

persons or firms from evading the 

ineligibility sanctions by using another 

legal entity to obtain Government 

contracts.’’ 47 FR 23658, 23661, 

implemented by 48 FR 19540. It is ‘‘not 

intended to prohibit bidding by a 

potential contractor where a debarred 

person or firm holds only a nominal 

interest in the potential contractor’s 

firm’’ and ‘‘[d]ecisions as to whether ‘an 

interest’ exists will be made on a caseby-case basis considering all relevant 

factors.’’ 47 FR 23658, 23661. The 

Department now proposes to eliminate 

any confusion by requiring the DBA 

‘‘interest’’ standard to be the standard 

for both DBA and Related Acts 

debarment. 

(5) Debarment Scope 

The Department proposes to revise 

the scope of Related Acts debarment so 

that it mirrors the scope of DBA 

debarment set out in current 29 CFR 

5.12(a)(1). Currently, under the Related 

Acts, contractors are not generally 

debarred from being awarded any 

contracts or subcontracts of the United 

States or the District of Columbia, but 

rather are only barred from being 

awarded contracts subject to DavisBacon prevailing wage standards. As 

proposed in revised § 5.12(a)(1), in 

Related Acts as well as DBA cases, any 

debarred contractor, subcontractor, or 

responsible officer would be barred for 

3 years from ‘‘[being] awarded any 

contract or subcontract of the United 

States or the District of Columbia and 

any contract or subcontract subject to 

the labor standards provisions of any of 

the statutes referenced by § 5.1.’’ 

The Department believes that there is 

no reasoned basis to prohibit debarred 

contractors or subcontractors whose 

violations have warranted debarment for 

Related Acts violations from receiving 

Related Acts contracts or subcontracts, 

but to permit them to continue to be 

awarded direct DBA contracts during 

the Related Acts debarment period. The 

proposed changes to § 5.12(a)(1) would 

eliminate this anomalous situation, and 

apply debarment consistently to 

contractors, subcontractors, and their 

responsible officers who have 

disregarded their obligations to workers 

or subcontractors, regardless of the 

source of Federal funding or assistance 

for the work. 

xxii. Employment Relationship Not 

Required 

The Department proposes a few 

changes to reinforce the wellestablished principle that Davis-Bacon 

labor standards requirements apply 

even when there is no employment 

relationship between a contractor and 

worker. 

The DBA states that ‘‘the contractor or 

subcontractor shall pay all mechanics 

and laborers employed directly on the 

site of the work, unconditionally and at 

least once a week, and without 

subsequent deduction or rebate on any 

account, the full amounts accrued at 

time of payment, computed at wage 

rates not less than those stated in the 

advertised specifications, regardless of 

any contractual relationship which may 

be alleged to exist between the 

contractor or subcontractor and the 

laborers and mechanics.’’ 40 U.S.C. 

3142(c)(1). The Department has 

interpreted this coverage to include 

‘‘[a]ll laborers and mechanics employed 

or working upon the site of the work,’’ 

§ 5.5(a)(1)(i), and the definitions of 

‘‘employed’’ in parts 3 and 5 similarly 

make it clear that the term includes all 

workers on the project and extends 

beyond the traditional common-law 

employment relationship. See §§ 3.2(e) 

(‘‘Every person paid by a contractor or 

subcontractor in any manner for his 

labor . . . is employed and receiving 

wages, regardless of any contractual 

relationship alleged to exist between 

him and the real employer.’’ (emphasis 

in original)); 5.2(o) (‘‘Every person 

performing the duties of a laborer or 

mechanic [on DBRA work] is employed 

regardless of any contractual 

relationship alleged to exist between the 

contractor and such person.’’ (emphasis 

in original)); cf. 41 U.S.C. 6701(3)(B) 

(defining ‘‘service employee’’ under the 

Service Contract Act to ‘‘include[ ] an 

individual without regard to any 

contractual relationship alleged to exist 

between the individual and a contractor 

or subcontractor’’); 29 CFR 4.155 

(providing that whether a person is a 

‘‘service employee’’ does not depend on 

any alleged contractual relationship). 

The ARB and its predecessors have 

reached similar conclusions. See Star 

Brite Constr. Co., Inc., ARB No. 98–113, 

2000 WL 960260, at *5 (June 30, 2000) 

(‘‘the fact that the workers [of a 

subcontractor] were engaged in 

construction of the . . . project triggered 

their coverage under the prevailing 

wage provisions of the [DBA]; lack of a 

traditional employee/employer 

relationship between [the prime 

contractor] and these workers did not 

absolve [the prime contractor] from the 

responsibility to insure that they were 

compensated in accordance with the 

requirements of the [DBA].’’); Labor 

Servs., Inc., WAB No. 90–14, 1991 WL 

494728, at *2 (May 24, 1991) (stating 

that the predecessor to section 3142(c) 

‘‘ ‘applies a functional rather than a 

formalistic test to determine coverage: If 

someone works on a project covered by 

the Act and performs tasks 

contemplated by the Act, that person is 

covered by the Act, regardless of any 

label or lack thereof,’ ’’ and requiring a 

contractor to pay DBA prevailing wages 

to workers labeled as ‘‘subcontractors’’). 

This broad scope of covered workers 

also extends to CWHSSA, the Copeland 

Act, and other Related Acts. See 40 

U.S.C. 3703(e) (Reorganization Plan No. 

14 of 1950 and 40 U.S.C. 3145—the 

authority for the 29 CFR parts 3 and 5 

regulations— apply to CWHSSA); 29 

CFR 3.2(e); see also, e.g., Ray Wilson 

Co., ARB No. 02–086, 2004 WL 384729, 

at *6 (finding workers met the DBA’s 

‘‘functional [rather than formalistic] test 

of employment’’ and affirming ALJ’s 

order of prevailing wages and overtime 

due workers of second-tier 

subcontractor); Joseph Morton Co., WAB 

No. 80–15, 1984 WL 161739, at *2–3 

(July 23, 1984) (rejecting contractor’s 

argument that workers were 

subcontractors not subject to DBA 

requirements and affirming ALJ finding 

that contractor owed prevailing wage 

and overtime back wages on contract 

subject to DBA and CWHSSA); cf. 

Charles Igwe, ARB No. 07–120, 2009 WL 

4324725, at *3–5 (Nov. 25, 2009) 

(rejecting contractors’ claim that 

workers were independent contractors 

not subject to SCA wage requirements, 

and affirming finding that contractors 

‘‘violated both the SCA and the 

CWHSSA by failing to pay required 

wages, overtime, fringe benefits, and 

holiday pay, and failing to keep proper 

records’’). 

The Department proposes a few 

specific changes to the regulations in 

recognition of this principle. First, the 

Department proposes to amend §§ 1.2 

and 3.2 to include a definition of 

‘‘employed’’ that is substantively 


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121The May 28, 1982 final rule was implemented 

in part, including §§ 5.5(a)(2) and 5.5(b)(3), in 1983. 

48 FR 19540, 19540, 19545–47 (Apr. 29, 1983). 

122The Department has long applied corporate 

veil-piercing principles under the DBRA. See, e.g., 

Thomas J. Clements, Inc., ALJ No. 82–DBA–27, 

Continued 

identical to the definition in § 5.2. This 

change would clarify that the DBA’s 

expansive scope of ‘‘employment’’ also 

applies in the context of wage surveys 

and determinations under part 1 and 

certified payrolls under part 3. Second, 

references to employment (e.g., 

employee, employed, employing, etc.) 

in § 5.5(a)(3) and (c), as well as 

elsewhere in the regulations, have been 

revised to refer instead to ‘‘workers,’’ 

‘‘laborers and mechanics,’’ or ‘‘work.’’ 

Notwithstanding the broad scope of 

employment reflected in the existing 

and proposed definitions and in case 

law, the Department believes that this 

language, particularly in the contract 

clauses themselves, will clarify this 

principle and eliminate ambiguity. 

Consistent with the above, however, to 

the extent that the words ‘‘employee,’’ 

‘‘employed,’’ or ‘‘employment’’ are used 

in this preamble or in the regulations, 

the Department intends that those 

words be interpreted expansively to not 

limit coverage to workers in an 

employment relationship. Finally, the 

Department proposes to clarify in the 

definitions of ‘‘employed’’ in parts 1, 3, 

and 5 that the broad definition applies 

equally to ‘‘public building[s] or public 

work[s]’’ and to ‘‘building[s] or work[s] 

financed in whole or in part by 

assistance from the United States 

through loan, grant, loan guarantee or 

insurance, or otherwise.’’ 

xxiii. Withholding 

The DBA, CWHSSA, and the 

regulations at 29 CFR part 5 authorize 

withholding from the contractor accrued 

payments or advances equal to the 

amount of unpaid wages due laborers 

and mechanics under the DBRA. See 40 

U.S.C. 3142(c)(3), 3144(a)(1) (DBA 

withholding), 3702(d), 3703(b)(2) 

(CWHSSA withholding); 29 CFR 

5.5(a)(2) and (b)(3) and 5.9. Withholding 

helps to realize the goal of protecting 

workers by ensuring that money is 

available to pay them for the work they 

performed but for which they were 

undercompensated. Withholding plays 

an important role in the statutory 

schemes to ensure payment of 

prevailing wages and overtime to 

laborers and mechanics on Federal and 

federally assisted construction projects. 

The regulations currently require, 

among other things, that upon a request 

from the Department, contracting 

agencies must withhold so much of the 

contract funds as may be considered 

necessary to pay the full amount of 

wages required by the contract, and in 

the case of CWHSSA, liquidated 

damages. See 29 CFR 5.5(a)(2) and (b)(3) 

and 5.9. The Department proposes a 

number of regulatory revisions to 

reinforce the current withholding 

provisions. 

(A) Cross-Withholding 

Cross-withholding is currently 

permitted and is a procedure through 

which agencies withhold contract 

monies due a contractor from contracts 

other than those on which the alleged 

violations occurred. Prior to the 1981– 

1982 rulemaking, Federal agencies 

generally refrained from crosswithholding for DBRA liabilities 

because neither the DBA nor the 

CWHSSA regulations specifically 

provided for it. In 1982, however, the 

Department amended the contract 

clauses to specifically provide for crosswithholding. See 47 FR 23658, 23659– 

60 121 (cross-withholding permitted as 

stated in § 5.5(a)(2) and (b)(3)); Group 

Dir., Claims Grp./GGD, B–225091 et al., 

1987 WL 101454, at *2 (Comp. Gen. 

Feb. 20, 1987) (the Department’s 1983 

Davis-Bacon regulatory revisions, e.g., 

§ 5.5(a)(2), ‘‘now provide that the 

contractor must consent to crosswithholding by an explicit clause in the 

contract’’). 

The Department proposes additional 

amendments to the cross-withholding 

contract clause language at § 5.5(a)(2) 

and (b)(3) to strengthen the 

Department’s ability to cross-withhold 

when contractors use single-purpose 

entities, joint ventures or partnerships, 

or other similar vehicles to bid on and 

enter into DBRA-covered contracts. As 

noted above with reference to the 

proposed definition of prime contractor, 

the interposition of another entity 

between the agency and the general 

contractor is not a new phenomenon. In 

general, however, the use of singlepurpose limited liability company (LLC) 

entities and similar joint ventures and 

teaming agreements in government 

contracting has been increasing in 

recent decades. See, e.g., John W. 

Chierichella & Anne Bluth Perry, Fed. 

Publ’ns LLC, Teaming Agreements and 

Advanced Subcontracting Issues, TAASI 

GLASS–CLE A at *1–6 (2007); A. Paul 

Ingrao, Joint Ventures: Their Use in 

Federal Government Contracting, 20 

Pub. Cont. L.J. 399 (1991). 

In response to this increase in the use 

of such single-purpose legal entities or 

arrangements, Federal agencies have 

often required special provisions to 

assure that liability among joint 

venturers will be joint and several. See, 

e.g., Ingrao, supra, at 402–03 (‘‘Joint and 

several liability special provisions vary 

with each procuring agency and range 

from a single statement to complex 

provisions regarding joint and several 

liability to the government or third 

parties.’’). While the corporate form may 

be a way for joint venturers to attempt 

to insulate themselves from liability, 

commentators have noted that this 

‘‘advantage will rarely be available in a 

Government contracts context, because 

the Government will customarily 

demand financial and performance 

guarantees from the parent companies 

as a condition of its ‘responsibility’ 

determination.’’ Chierichella & Perry, 

supra, at *15–16. 

Without amendment to the existing 

regulations, however, the Government is 

not able to effectively demand similar 

guarantees to secure performance of 

Davis-Bacon prevailing wage 

requirements. Unless the crosswithholding regulations are amended, 

the core DBRA remedy of crosswithholding may be of limited 

effectiveness as to joint ventures and 

other similar contracting vehicles such 

as single-purpose LLCs. This 

enforcement gap exists because, as a 

general matter, cross-withholding 

(referred to as ‘‘offset’’ under the 

common law) is not available unless 

there is a ‘‘mutuality of debts’’ in that 

the creditor and debtor involved are 

exactly the same person or legal entity. 

See R.P. Newsom, 39 Comp. Gen. 438, 

439 (1959). That general rule, however, 

can be waived by agreement of the 

parties. See Lila Hannebrink, 48 Comp. 

Gen. 365, 365 (1968) (allowing crosswithholding against a joint venture for 

debt of an individual joint venturer on 

a prior contract, where all parties 

agreed). 

The structure of the Davis-Bacon Act, 

with its implementation in part through 

the mechanism of contract clauses, 

provides both the opportunity and the 

responsibility of the Government to 

ensure—by contract—that the use of the 

corporate form does not interfere with 

Congress’s mandate that workers be 

paid the required prevailing wage and 

that withholding ensures the payment of 

any back wages owed. It is a cardinal 

rule of law that ‘‘the interposition of a 

corporation will not be allowed to 

defeat a legislative policy, whether that 

was the aim or only the result of the 

arrangement.’’ Anderson v. Abbott, 321 

U.S. 349, 363 (1944). This principle is 

generally applied to allow, in 

appropriate circumstances, for corporate 

forms to be disregarded by ‘‘piercing of 

corporate veil.’’ 122 However, where a 


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1984 WL 161753, at *9 (June 14, 1984) (recognizing, 

in the context of a Davis-Bacon Act enforcement 

action, that a court may ‘‘pierce the corporation veil 

where failure to do so will produce an unjust 

result’’), aff’d, WAB No. 84–12, 1985 WL 167223, 

at *1 (Jan. 25, 1985) (adopting ALJ’s decision as the 

Wage Appeals Board’s own decision); Griffin v. 

Sec’y of Labor, ARB Nos. 00–032, 00–033, 2003 WL 

21269140, at *8, n.2 (May 30, 2003) (various 

contractors and their common owner, who ‘‘made 

all decisions regarding operations of all of the 

companies,’’ were one another’s ‘‘alter egos’’ in Act 

debarment action). 

123Cf. Robert W. Hamilton, The Corporate Entity, 

49 Tex. L. Rev. 979, 984 (1971) (noting the 

difference in application of ‘‘piercing the veil’’ 

concepts in contract law because ‘‘the creditor more 

or less assumed the risk of loss when he dealt with 

a ‘shell’; if he was concerned, he should have 

insisted that some solvent third person guarantee 

the performance by the corporation’’). 124See note 14, supra. 

policy is enacted by contract, it is 

inefficient and unnecessary to rely on 

post hoc veil-piercing to assure that the 

legislative policy is enacted. The 

Government can instead, by contract, 

assure that the use of single-purpose 

entities, subsidiaries, or joint ventures 

interposed as nominal ‘‘prime 

contractors’’ does not inhibit the 

application of the Congressional 

mandate to assure back wages are 

recovered through withholding.123

Accordingly, the Department 

proposes amending the withholding 

contract clauses at § 5.5(a)(2) and (b)(3) 

to ensure that any entity that directly 

enters into a contract covered by the 

DBRA must agree to cross-withholding 

against it to cover any violations of 

specified affiliates under other covered 

contracts entered into by those affiliates. 

The covered affiliates are those entities 

included within the proposed definition 

of prime contractor in § 5.2: Controlling 

shareholders or members, joint 

venturers or partners, and contractors 

(e.g., general contractors) that have been 

delegated significant construction and/ 

or compliance responsibilities. Thus, for 

example, if a general contractor secures 

two prime contracts for two Related Actcovered housing projects through 

separate single-purpose entities that it 

controls, the new cross-withholding 

language would allow the Department to 

seek cross-withholding on either 

contract even though the contracts are 

nominally with separate legal entities. 

Or, if a general contractor is delegated 

all of the construction and compliance 

duties on a first contract held by an 

unrelated developer-owner, but the 

general contractor itself holds a prime 

contract on a separate second contract, 

the Department could seek crosswithholding from the general contractor 

on the second contract, which it holds 

directly, to remedy violations on the 

first contract. 

The Department also proposes to add 

language to § 5.5(a)(2) and (b)(3) to 

clarify that the Government may pursue 

cross-withholding regardless of whether 

the contract on which withholding is 

sought was awarded by, or received 

Federal assistance from, the same 

agency that awarded or assisted the 

prime contract on which the violations 

necessitating the withholding occurred. 

This revision is in accordance with the 

Department’s longstanding policy, the 

current language of the withholding 

clauses, and case law on the use of 

setoff procedures in other contexts 

dating to 1946. See, e.g., United States 

v. Maxwell, 157 F.3d 1099, 1102 (7th 

Cir. 1998) (‘‘[T]he [F]ederal 

[G]overnment is considered to be a 

single-entity that is entitled to set off 

one agency’s debt to a party against that 

party’s debt to another agency.’’); Cherry 

Cotton Mills v. United States, 327 U.S. 

536, 539 (1946) (same). However, 

because the current Davis-Bacon 

regulatory language does not explicitly 

state that funds may be withheld from 

contracts awarded by other agencies, 

some agencies have questioned whether 

cross-withholding is appropriate in such 

circumstances. This proposed addition 

would expressly dispel any such 

uncertainty or confusion. Conforming 

edits have also been proposed for § 5.9. 

The Department also proposes certain 

non-substantive changes to streamline 

the withholding clauses. The 

Department proposes to include in the 

withholding clause at § 5.5(a)(2)(i) 

similar language as in the CWHSSA 

withholding clause at § 5.5(b)(3) 

authorizing withholding necessary ‘‘to 

satisfy the liabilities . . . for the full 

amount of wages . . .and monetary 

relief’’ of the contractor or subcontractor 

under the contract—instead of the 

specific language currently in § 5.5(a)(2) 

that re-states the lists of the types of 

covered employees already listed in 

§ 5.5(a)(1)(i). The Department also 

proposes using the same term ‘‘so much 

of the accrued payments or advances’’ 

in both § 5.5(a)(2) and (b)(3), instead of 

simply ‘‘sums’’ as currently written in 

§ 5.5(b)(3). Finally, the Department also 

proposes to adopt in § 5.5(b)(3) the use 

of the term ‘‘considered,’’ as used in 

§ 5.5(a)(2), instead of ‘‘determined’’ as 

currently used in § 5.5(b)(3), to refer to 

the determination of the amount of 

funds to withhold, as this mechanism 

applies in the same manner under both 

clauses. 

Conforming edits for each of the 

above changes to the withholding 

clauses at § 5.5(a)(2) and (b)(3) have also 

been proposed for the explanatory 

section at § 5.9. In addition, the 

Department proposes clarifying in a new 

paragraph (c) of § 5.9 that crosswithholding from a contract held by a 

different legal entity is not appropriate 

unless the withholding provisions in 

that entity’s contract were incorporated 

in full or by reference. Absent 

exceptional circumstances, crosswithholding would not be permitted 

from a contract held by a different legal 

entity where the labor standards were 

incorporated only by operation of law 

into that contract. 

(B) Suspension of Funds for 

Recordkeeping Violations 

The Department also proposes to add 

language clarifying that, as proposed in 

§ 5.5(a)(3)(iv), funds may be suspended 

when a contractor has refused to submit 

certified payroll or provide the required 

records as set forth at § 5.5(a)(3). 

(C) The Department’s Priority To 

Withheld Funds 

The Department proposes revising 

§§ 5.5(a)(2) and (b)(3) and 5.9 to codify 

the Department’s longstanding position 

that, consistent with the DBRA’s 

remedial purpose to ensure that 

prevailing wages are fully paid to 

covered workers, the Department has 

priority to funds withheld (including 

funds that have been cross-withheld) for 

violations of Davis-Bacon prevailing 

wage requirements and CWHSSA 

overtime requirements. See also 

PWRB,124 DBA/DBRA/CWHSSA 

Withholding and Disbursement, at 4. In 

order to ensure that underpaid workers 

receive the monies to which they are 

entitled, contract funds that are 

withheld to reimburse workers owed 

Davis-Bacon or CWHSSA wages, or 

both, must be reserved for that purpose 

and may not be used or set aside for 

other purposes until such time as the 

prevailing wage and overtime issues are 

resolved. 

Affording the Department first 

priority to withheld funds, above 

competing claims, ‘‘effectuate[s] the 

plain purpose of these Federal labor 

standards laws . . . [to] insure that 

every laborer and mechanic is paid the 

wages and fringe benefits to which [the 

DBA and DBRA] entitle them.’’ Quincy 

Hous. Auth. LaClair Corp., WAB No. 

87–32, 1989 WL 407468, at *3 (Feb. 17, 

1989) (holding that ‘‘the Department of 

Labor has priority rights to all funds 

remaining to be paid on a [F]ederal or 

federally assisted contract, to the extent 

necessary to pay laborers and mechanics 

employed by contractors and 

subcontractors under such contract the 

full amount of wages required by 

[F]ederal labor standards laws and the 

contract . . .’’). The proposed 

withholding priority serves an 


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125See note 14, supra. 

important public policy of providing 

restitution for work that laborers and 

mechanics have already performed, but 

for which they were not paid the full 

DBA or DBRA wages they were owed in 

the first place. 

Specifically, the Department proposes 

to set forth expressly that it has priority 

to funds withheld for DBA, CWHSSA, 

and other Related Act wage 

underpayments over competing claims 

to such withheld funds by: 

(1) A contractor’s surety(ies), 

including without limitation 

performance bond sureties, and 

payment bond sureties; 

(2) A contracting agency for its 

reprocurement costs; 

(3) A trustee(s) (either a courtappointed trustee or a U.S. trustee, or 

both) in bankruptcy of a contractor, or 

a contractor’s bankruptcy estate; 

(4) A contractor’s assignee(s); 

(5) A contractor’s successor(s); or 

(6) A claim asserted under the Prompt 

Payment Act, 31 U.S.C. 3901–3907. 

To the extent that a contractor did not 

have rights to funds withheld for DavisBacon wage underpayments, nor do 

their sureties, assignees, successors, 

creditors (e.g., the U.S. Internal Revenue 

Service), or bankruptcy estates have 

greater rights than the contractor. See, 

e.g., Liberty Mut. Ins. Co., ARB No. 00– 

018, 2003 WL 21499861, at *7–9 (DOL 

priority to DBA withheld funds where 

surety ‘‘ha[d] not satisfied all of the 

bonded [and defaulted prime] 

contractor’s obligations, including the 

obligation to ensure the payment of 

prevailing wages’’); Unity Bank & Trust 

Co. v. United States, 5 Cl. Ct. 380, 384 

(1984) (assignees acquire no greater 

rights than their assignors); Richard T. 

D’Ambrosia, 55 Comp. Gen. 744, 746 

(1976) (IRS tax levy cannot attach to 

money withheld for DBA 

underpayments in which contractor has 

no interest). 

Withheld funds always should, for 

example, be used to satisfy DBA and 

DBRA wage claims before any 

reprocurement costs (e.g., following a 

contractor’s default or termination from 

all or part of the covered work) are 

collected by the Government. See WHD 

Opinion Letter DBRA–132 (May 8, 

1985). The Department has explained 

that ‘‘[t]o hold otherwise . . . would be 

inequitable and contrary to public 

policy since the affected employees 

already have performed work from 

which the Government has received the 

benefit and that to give contracting 

agency reprocurement claims priority in 

such instances would essentially require 

the employees to unfairly pay for the 

breach of contract between their 

employer and the Government.’’ Id.; see 

also PWRB, DBA/DBRA/CWHSSA 

Withholding and Disbursement, at 4.125

This rationale applies with equal force 

in support of the Department’s priority 

to withheld funds over the other types 

of competing claims listed in this 

proposed regulation. 

The Department’s rights to withheld 

funds for unpaid earnings also are 

superior to performance and payment 

bond sureties of a DBA or DBRA 

contractor. See Westchester Fire Ins. Co. 

v. United States, 52 Fed. Cl. 567, 581– 

82 (2002) (surety did not acquire rights 

that contractor itself did not have); 

Liberty Mut. Ins. Co., ARB No. 00–018, 

2003 WL 21499861 at *7–9 (ARB found 

that Administrator’s claim to withheld 

contract funds for DBA wages took 

priority over performance (and 

payment) bond surety’s claim); see also 

Quincy Hous. Auth. LaClair Corp., WAB 

No. 87–32, 1989 WL 407468, at *3. The 

Department can withhold unaccrued 

funds such as advances until ‘‘sufficient 

funds are withheld to compensate 

employees for the wages to which they 

are entitled’’ under the DBA. Liberty 

Mut. Ins. Co., ARB No. 00–018, 2003 WL 

21499861, at *6; see also 29 CFR 5.9. 

Similarly, the Department has priority 

over assignees (e.g., assignees under the 

Assignment Claims Act, see 31 U.S.C. 

3727, 41 U.S.C. 6305) to DBRA withheld 

funds. For example, in Unity Bank & 

Trust Co., 5 Cl. Ct. at 383, the 

employees’ claim to withheld funds for 

a subcontractor’s DBA wage 

underpayments had priority over a 

claim to those funds by the assignee— 

a bank that had lent money to the 

subcontractor to finance the work. 

Nor are funds withheld pursuant to 

the DBRA for prevailing wage 

underpayments property of a 

contractor’s (debtor’s) bankruptcy estate. 

See In re Quinta Contractors, Inc., 34 

B.R. 129 (Bankr. M.D. Pa. 1983); cf. 

Pearlman v. Reliance Ins. Co., 371 U.S. 

132, 135–36 (1962) (concluding, in a 

case under the Miller Act, that ‘‘the 

Bankruptcy Act simply does not 

authorize a trustee to distribute other 

people’s property among a bankrupt’s 

creditors’’). When a contractor has 

violated its contract with the 

government—as well as the DBA or 

DBRA—by failing to pay required wages 

and fringe benefits, it has not earned its 

contractual payment. Therefore, 

withheld funds are not property of the 

contractor-debtor’s bankruptcy estate. 

Cf. Professional Tech. Servs., Inc. v. IRS, 

No. 87–780C(2), 1987 WL 47833, at *2 

(E.D. Mo. Oct. 15, 1987) (when DOL 

finds [an SCA] violation and issues a 

withholding letter, that act 

‘‘extinguishe[s]’’ whatever property 

right the debtor (contractor) might 

otherwise have had to the withheld 

funds, subject to administrative review 

if the contractor chooses to pursue it); 

In re Frank Mossa Trucking, Inc., 65 

B.R. 715, 7–18 (Bankr. D. Mass. 1985) 

(pre-petition and post-petition SCA 

withholding was not property of the 

contractor-debtor’s bankruptcy estate). 

Various Comptroller General 

decisions further underscore these 

principles. See, e.g., Carlson Plumbing 

& Heating, B–216549, 1984 WL 47039 

(Comp. Gen. Dec. 5, 1984) (DBA and 

CWHSSA withholding has first priority 

over IRS tax levy, payment bond surety, 

and trustee in bankruptcy); Watervliet 

Arsenal, B–214905, 1984 WL 44226, at 

*2 (Comp. Gen. May 15, 1984) (DBA and 

CWHSSA wage claims for the benefit of 

unpaid workers had first priority to 

retained contract funds, over IRS tax 

claim and claim of payment bond 

surety), aff’d sub nom on 

reconsideration Int’l Fidelity Ins. Co., B– 

214905, 1984 WL 46318 (Comp. Gen. 

July 10, 1984); Forest Serv. Request for 

Advance Decision, B–211539, 1983 WL 

27408, at *1 (Comp. Gen. Sept. 26, 1983) 

(DOL’s withholding claim for unpaid 

DBA wages prevailed over claims of 

payment bond surety and trustee in 

bankruptcy). 

The Department proposes codifying 

its position that DBRA withholding has 

priority over claims under the Prompt 

Payment Act, 31 U.S.C. 3901–3907. The 

basis for this proposed provision is that 

a contractor’s right to prompt payment 

does not have priority over legitimate 

claims—such as withholding—arising 

from the contractor’s failure to fully 

satisfy its obligations under the contract. 

See, e.g., 31 U.S.C. 3905(a) (concerning 

requirement that payments to prime 

contractors be for performance by such 

contractor that conforms to the 

specifications, terms, and conditions of 

its contract). 

The Department welcomes comments 

on whether the listed priorities should 

be effectuated by different language in 

the contract clause, such as an 

agreement between the parties that a 

contractor forfeits any legal or equitable 

interest in withheld payments once it 

commits violations, subject to 

procedural requirements that allow the 

contractor to contest the violations. 

xxiv. Subpart C—Severability 

The Department proposes to add a 

new subpart C, titled ‘‘Severability’’, 

which would contain a new § 5.40, also 

titled ‘‘Severability.’’ The proposed 

severability provision explains that each 

provision is capable of operating 

independently from one another, and 


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126See Office of the Federal Register, Drafting 

Legal Documents: Principles of Clear Writing § 18, 

available at https://www.archives.gov/Federalregister/write/legal-docs/clear-writing.html. 

that if any provision of part 5 is held to 

be invalid or unenforceable by its terms, 

or as applied to any person or 

circumstance, or stayed pending further 

agency action, the Department intends 

that the remaining provisions remain in 

effect. 

4. Non-Substantive Changes 

xxv. Plain Language 

The Plain Writing Act of 2010 (Pub. 

L. 111–274) requires Federal agencies to 

write documents in a clear, concise, 

well-organized manner. The Department 

has written this document to be 

consistent with the Plain Writing Act as 

well as the Presidential Memorandum, 

‘‘Plain Language in Government 

Writing,’’ published June 10, 1998 (63 

FR 31885). The Department requests 

comment on the proposed rule with 

respect to clarity and effectiveness of 

the language used. 

xxvi. Other Changes 

The Department proposes to make 

non-substantive revisions throughout 

the regulations to address typographical 

and grammatical errors and to remove or 

update outdated or incorrect regulatory 

and statutory cross-references. The 

Department also proposes to adopt more 

inclusive language, including 

terminology that is gender-neutral, in 

the proposed regulations. These changes 

are consistent with general practice for 

Federal government publications; for 

example, guidance from the Office of 

the Federal Register advises agencies to 

avoid using gender-specific job titles 

(e.g., ‘‘foremen’’).126 These nonsubstantive revisions do not alter the 

substantive requirements of the 

regulations. 

IV. Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(PRA), 44 U.S.C. 3501 et seq., and its 

attendant regulations, 5 CFR part 1320, 

require the Department to consider the 

agency’s need for its information 

collections, their practical utility, as 

well as the impact of paperwork and 

other information collection burdens 

imposed on the public, and how to 

minimize those burdens. The PRA 

typically requires an agency to provide 

notice and seek public comments on 

any proposed collection of information 

contained in a proposed rule. See 44 

U.S.C. 3506(c)(2)(B); 5 CFR 1320.8. 

This rulemaking would affect existing 

information collection requirements 

previously approved under OMB 

control number 1235–0008 (DavisBacon Certified Payroll) and OMB 

control number 1235–0023 (Requests to 

Approve Conformed Wage 

Classifications and Unconventional 

Fringe Benefit Plans Under the DavisBacon and Related Acts/Contract Work 

Hours and Safety Standards Act). As 

required by the PRA, the Department 

has submitted information collection 

revisions to OMB for review to reflect 

changes that will result from the 

proposed rule. 

Summary: This rulemaking proposes 

to amend regulations issued under the 

Davis-Bacon and Related Acts that set 

forth rules for the administration and 

enforcement of the Davis-Bacon labor 

standards that apply to Federal and 

federally assisted construction projects. 

The Department proposes to add two 

new recordkeeping requirements 

(telephone number and email address) 

to the collection under 1235–0008; 

however, it does not propose that such 

data be added to the certified weekly 

payroll submission. The Department 

proposes to add paragraph (a)(3)(iii) to 

29 CFR 5.5, which will require all 

contractors, subcontractors, and 

recipients of Federal assistance to 

maintain and preserve Davis-Bacon 

contracts, subcontracts, and related 

documents for 3 years after all the work 

on the prime contract is completed. 

These related documents include 

contractor and subcontractor bids and 

proposals, amendments, modifications, 

and extensions to contracts, 

subcontracts, and agreements. The 

Department notes that it is a normal 

business practice to keep such 

documents and does not expect an 

increase in burden associated with this 

requirement. The Department requests 

public comment on its assumption that 

contractors and subcontractors already 

maintain these records as a matter of 

good business practice. Further, the 

Department adds proposed regulatory 

citations to the collection under 1235– 

0023, however there is no change in 

burden. 

Purpose and use: This proposed rule 

continues the already existing 

requirements that contractors and 

subcontractors must certify their 

payrolls by attesting that persons 

performing work on DBRA covered 

contracts have received the proper 

payment of wages and fringe benefits. 

Contracting officials and WHD 

personnel use the records and certified 

payrolls to verify contractors pay the 

required rates for work performed. 

Additionally, the Department reviews 

a proposed conformance action report to 

determine the appropriateness of a 

conformance action. Upon completion 

of review, the Department approves, 

modifies, or disapproves a conformance 

request and issues a determination. The 

Department also reviews requests for 

approval of unfunded fringe benefit 

plans to determine the propriety of the 

plans. 

WHD obtains PRA clearance under 

control number 1235–0008 for an 

information collection covering the 

Davis-Bacon Certified Payroll and 

certain proposed new recordkeeping 

requirements. An Information 

Collection Request has been submitted 

to revise the approval to incorporate the 

regulatory citations in this proposed 

rule applicable to the proposed rule and 

adjust burden estimates to reflect a 

slight increase in burden associated 

with the proposed new recordkeeping 

requirements. 

WHD obtains PRA clearance under 

OMB control number 1235–0023 for an 

information collection related to 

reporting requirements related to 

Conformance Reports and Unfunded 

Fringe Benefit Plans. This Information 

Collection Request is being submitted as 

the proposed rule proposes to revise the 

location within the regulatory text of 

certain requirements. An Information 

Collection Request has been submitted 

to OMB to revise the approval to 

incorporate the regulatory citations in 

this proposed rule. 

Information and technology: There is 

no particular order or form of records 

prescribed by the proposed regulations. 

A respondent may meet the 

requirements of this proposed rule using 

paper or electronic means. 

Public comments: The Department 

seeks comments on its analysis that this 

NPRM creates a slight increase in 

paperwork burden associated with ICR 

1235–0008 and no increase in burden to 

ICR 1235–0023. Commenters may send 

their views on the Department’s PRA 

analysis in the same way they send 

comments in response to the NPRM as 

a whole (e.g., through the 

www.regulations.gov website), including 

as part of a comment responding to the 

broader NPRM. While much of the 

information provided to OMB in 

support of the information collection 

request appears in the preamble, 

interested parties may obtain a copy of 

the full copy of the supporting 

statements by sending a written request 

to the mail address shown in the 

ADDRESSES section at the beginning of 

this preamble or by calling the number 

listed in the ADDRESSES section of this 

preamble. Alternatively, a copy of the 

ICR with applicable supporting 

documentation; including a description 

of the likely respondents, proposed 

frequency of response, and estimated 


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127See 58 FR 51735, 51741 (Oct. 4, 1993). 

total burden may be obtained free of 

charge from the RegInfo.gov website on 

the day following publication of this 

notice or by visiting http://

www.reginfo.gov/public/do/PRAMain 

website. In addition to having an 

opportunity to file comments with the 

Department, comments about the 

paperwork implications of the proposed 

regulations may be addressed to the 

OMB. Comments to the OMB should be 

directed to: Office of Information and 

Regulatory Affairs, Office of 

Management and Budget, Attention: 

Desk Officer for WHD, New Executive 

Office Building, Room 10235, 

Washington, DC 20503. The OMB will 

consider all written comments that the 

agency receives during the comment 

period of this proposed rule. As 

previously indicated, written comments 

directed to the Department may be 

submitted during the comment period of 

this proposed rule. 

The OMB and the Department are 

particularly interested in comments 

that: 

• Evaluate whether the proposed 

collections of information are necessary 

for the proper performance of the 

functions of the agency, including 

whether the information will have 

practical utility; 

• Evaluate the accuracy of the 

agency’s estimate of the burden of the 

proposed collection of information, 

including the validity of the 

methodology and assumptions used; 

• Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

• Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

Total burden for the subject 

information collections, including the 

burdens that will be unaffected by this 

proposed rule and any changes are 

summarized as follows: 

Type of review: Revisions to currently 

approved information collections. 

Agency: Wage and Hour Division, 

Department of Labor. 

Title: Davis-Bacon Certified Payroll. 

OMB Control Number: 1235–0008. 

Affected public: Private sector, 

businesses or other for-profits and 

Individuals or Households. 

Estimated number of respondents: 

154,500 (0 from this rulemaking). 

Estimated number of responses: 

9,194,616 (1,200,000 from this 

rulemaking). 

Frequency of response: On occasion. 

Estimated annual burden hours: 

7,464,975 (3,333 burden hours due to 

this NPRM). 

Capital/Start-up costs: $0 ($0 from 

this rulemaking). 

Title: Requests to Approve Conformed 

Wage Classifications and 

Unconventional Fringe Benefit Plans 

Under the Davis-Bacon and Related Acts 

and Contract Work Hours and Safety 

Standards Act. 

OMB Control Number: 1235–0023. 

Affected public: Private sector, 

businesses or other for-profits and 

Individuals or Households. 

Estimated number of respondents: 

8,518 (0 from this rulemaking). 

Estimated number of responses: 8,518 

(0 from this rulemaking). 

Frequency of response: on occasion. 

Estimated annual burden hours: 2,143 

(0 from this rulemaking). 

Estimated annual burden costs: 0. 

V. Executive Order 12866, Regulatory 

Planning and Review; Executive Order 

13563, Improved Regulation and 

Regulatory Review 

Under Executive Order 12866, OMB’s 

Office of Information and Regulatory 

Affairs (OIRA) determines whether a 

regulatory action is significant and, 

therefore, subject to the requirements of 

the Executive Order and OMB 

review.127 Section 3(f) of Executive 

Order 12866 defines a ‘‘significant 

regulatory action’’ as a regulatory action 

that is likely to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more, or 

adversely affect in a material way a 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local, 

or tribal governments or communities 

(also referred to as economically 

significant); (2) create serious 

inconsistency or otherwise interfere 

with an action taken or planned by 

another agency; (3) materially alter the 

budgetary impact of entitlements, 

grants, user fees or loan programs or the 

rights and obligations of recipients 

thereof; or (4) raise novel legal or policy 

issues arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. OIRA 

has determined that this proposed rule 

is a ‘‘significant regulatory action’’ 

under section 3(f) of Executive Order 

12866 and is economically significant. 

Although the Department has only 

quantified costs of $12.6 million in Year 

1, there are multiple components of the 

rule that could not be quantified due to 

data limitations, so it is possible that the 

aggregate effect of the rule is larger. 

Executive Order 13563 directs 

agencies to, among other things, propose 

or adopt a regulation only upon a 

reasoned determination that its benefits 

justify its costs; that it is tailored to 

impose the least burden on society, 

consistent with obtaining the regulatory 

objectives; and that, in choosing among 

alternative regulatory approaches, the 

agency has selected those approaches 

that maximize net benefits. Executive 

Order 13563 recognizes that some costs 

and benefits are difficult to quantify and 

provides that, when appropriate and 

permitted by law, agencies may 

consider and discuss qualitatively 

values that are difficult or impossible to 

quantify, including equity, human 

dignity, fairness, and distributive 

impacts. The analysis below outlines 

the impacts that the Department 

anticipates may result from this 

proposed rule and was prepared 

pursuant to the above-mentioned 

executive orders. 

A. Introduction 

1. Background and Need for Rulemaking 

In order to provide greater clarity and 

enhance their usefulness in the modern 

economy, the Department proposes to 

update and modernize the regulations 

that implement the Davis-Bacon and 

Related Acts. The Davis-Bacon Act 

(DBA), enacted in 1931, requires the 

payment of locally prevailing wages and 

fringe benefits on Federal contracts for 

construction. See 40 U.S.C. 3142. The 

law applies to workers on contracts 

awarded directly by Federal agencies 

and the District of Columbia that are in 

excess of $2,000 and for the 

construction, alteration, or repair of 

public buildings or public works. 

Congress subsequently incorporated 

DBA prevailing wage requirements into 

numerous statutes (referred to as 

Related Acts) under which Federal 

agencies assist construction projects 

through grants, loans, guarantees, 

insurance, and other methods. 

The Department seeks to address a 

number of outstanding challenges in the 

program while also providing greater 

clarity in the DBA and Related Acts 

(collectively, the DBRA) regulations and 

enhancing their usefulness in the 

modern economy. In this rulemaking, 

the Department proposes to update and 

modernize the regulations 

implementing the DBRA at 29 CFR parts 

1, 3, and 5. Among other proposals as 

discussed more fully earlier in this 

preamble, the Department proposes: 

• To return to the definition of 

‘‘prevailing wage’’ in § 1.2 that it used 


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15764 Federal Register / Vol. 87, No. 53 / Friday, March 18, 2022 / Proposed Rules 

128The 1981–1982 rulemaking went into effect 

April 29, 1983. 48 FR 19532. 

from 1935 to 1983.128 Currently, a single 

wage rate may be identified as 

prevailing in the area only if it is paid 

to a majority of workers in a 

classification on the wage survey; 

otherwise a weighted average is used. 

The Department proposes to return 

instead to the ‘‘three-step’’ method in 

effect before 1983. Under that method 

(also known as the 30-percent rule), in 

the absence of a wage rate paid to a 

majority of workers in a particular 

classification, a wage rate will be 

considered prevailing if was paid to at 

least 30 percent of such workers. Only 

if no single wage rate is paid to at least 

30 percent of workers in a classification 

will an average rate be used. 

• To revise § 1.6(c)(1) to provide a 

mechanism to regularly update certain 

non-collectively bargained prevailing 

wage rates based on the Bureau of Labor 

Statistics Employment Cost Index. The 

mechanism is intended to keep such 

rates more current between surveys so 

that they do not become out-of-date and 

fall behind prevailing wage rates in the 

area. 

• To expressly give the Administrator 

authority and discretion to adopt State 

or local wage determinations as the 

Davis-Bacon prevailing wage where 

certain specified criteria are satisfied. 

• To return to a prior policy made 

during the 1981–1982 rulemaking 

related to the delineation of wage survey 

data submitted for ‘‘metropolitan’’ or 

‘‘rural’’ counties in § 1.7(b). Through 

this change, the Department seeks to 

more accurately reflect modern labor 

force realities, to allow more wage rates 

to be determined at smaller levels of 

geographical aggregation, and to 

increase the sufficiency of data at the 

statewide level. 

• To include provisions to reduce the 

need for the use of ‘‘conformances’’ 

where the Department has received 

insufficient data to publish a prevailing 

wage for a classification of worker—a 

process that currently is burdensome for 

contracting agencies, contractors, and 

the Department. 

• To strengthen enforcement, 

including by making effective by 

operation of law contract clauses or 

wage determinations that were wrongly 

omitted from contracts, and by 

codifying the principle of annualization 

used to calculate the amount of DavisBacon credit that a contractor may 

receive for contributions to a fringe 

benefit plan when the contractor’s 

workers also work on private projects. 

• To clarify and strengthen the scope 

of coverage under the DBRA, including 

by revising the definition of ‘‘site of the 

work’’ to further encompass certain 

construction of significant portions of a 

building or work at secondary 

worksites, to better clarify when 

demolition and similar activities are 

covered by the Davis-Bacon labor 

standards, and to clarify that the 

regulatory definitions of ‘‘building or 

work’’ and ‘‘public building or public 

work’’ can be met even when the 

construction activity involves only a 

portion of an overall building, structure, 

or improvement. 

2. Summary of Affected Contractors, 

Workers, Costs, Transfers, and Benefits 

The Department evaluates the impacts 

of two components of this proposed rule 

in this regulatory impact analysis: 

• The return to the ‘‘three-step’’ 

method for determining the prevailing 

wage and 

• The provision of a mechanism to 

regularly update certain noncollectively bargained prevailing wage 

rates based on the Bureau of Labor 

Statistics Employment Cost Index. 

This proposed rule predominantly 

affects firms that hold federally funded 

or assisted construction contracts 

because of its impact on prevailing wage 

and fringe benefit rate determinations. 

The Department identified a range of 

potentially affected firms. The more 

narrowly defined population (those 

actively holding DBRA-covered 

contracts) includes 113,900 firms. The 

broader population (including those 

bidding on contracts but without active 

contracts, or those considering bidding 

in the future) includes 154,800 firms. 

Only a subset of potentially affected 

firms will be substantively affected and 

fewer may experience a change in 

payroll costs because some firms 

already pay above the prevailing wage 

rates that may result from this proposal. 

The Department estimated there are 1.2 

million workers on DBRA covered 

contracts and therefore potentially 

affected by this proposed rule. Some of 

these workers will not be affected 

because they work in occupations not 

covered by DBRA or, if they are covered 

by DBRA, workers may not be affected 

by the prevailing wage updates of this 

proposed rule because they may already 

earn above the updated prevailing wage 

and fringe benefit rates. 

The Department estimated both 

regulatory familiarization costs and 

implementation costs for affected firms. 

Year 1 costs are estimated to total $12.6 

million. Average annualized costs 

across the first 10 years are estimated to 

be $3.9 million (using a 7 percent 

discount rate). The transfer analysis 

discussed in Section IV.D. draws on two 

illustrative analyses conducted by the 

Department. However, the Department 

does not definitively quantify annual 

transfer payments due to data 

limitations and uncertainty. Similarly, 

benefits are discussed qualitatively due 

to data limitations and uncertainty. See 

Table 1 for a summary of affected 

contractor firms, workers, and costs. 

TABLE 1—SUMMARY OF AFFECTED CONTRACTOR FIRMS, WORKERS, AND COSTS

[2020 dollars] 

Year 1 

Future years Average annualized value 

Year 2 Year 10 3% real rate 7% real rate 

Firms: Narrow Definition a .................................................... 154,500 154,500 154,500 ........................ ........................

Firms: Broad Definition b ...................................................... 192,400 192,400 192,400 ........................ ........................

Potentially Affected Workers (millions) ................................ 1.2 1.2 1.2 ........................ ........................

Direct employer costs (million) ............................................ $12.6 $2.5 $2.5 $3.7 $3.9 

Regulatory familiarization ............................................. $10.1 $0.0 $0.0 1.2 1.4 

Implementation ............................................................. $2.5 $2.5 $2.5 2.5 2.5 

aFirms actively holding DBRA-covered contracts. 

bFirms who may be bidding on DBA contracts or considering bidding in the future. 


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129The North American Industry Classification 

System (NAICS) is a method by which Federal 

statistical agencies classify business establishments 

in order to collect, analyze, and publish data about 

certain industries. Each industry is categorized by 

a sequence of codes ranging from 2 digits (most 

aggregated level) to 6 digits (most granular level). 

https://www.census.gov/naics/. 

130The Department acknowledges that there may 

be affected firms that fall under other NAICS codes 

and for which the contracting agency did not flag 

in the FPDS–NG system that the contract is covered 

by DBRA. Including these additional NAICS codes 

could result in an overestimate because they would 

only be affected by this proposed rule if DavisBacon covered construction occurs. The data does 

not allow the Department to determine this. 

131The DBA only applies in the 50 states and the 

District of Columbia and does not apply in the 

territories. However, some Related Acts provided 

Federal funding of construction in the territories 

that, by virtue of the Related Act, is subject to DBA 

prevailing wage requirements. For example, the 

DBA does not apply in Guam, but a Related Act 

provides that base realignment construction in 

Guam is subject to DBA requirements. 

132 Data released in monthly files. Available at: 

https://www.sam.gov/SAM/pages/public/extracts/ 

samPublicAccessData.jsf. 

133Entities registering in SAM are asked if they 

wish to bid on contracts. If the firm answers ‘‘yes,’’ 

then they are included as ‘‘All Awards’’ in the 

‘‘Purpose of Registration’’ column in the SAM data. 

The Department included only firms with a value 

of ‘‘Z2,’’ which denotes ‘‘All Awards.’’ 

134The Department believes that there may be 

certain limited circumstances in which State and 

local governments may be contractors, but believes 

that this number would be minimal and including 

government entities would result in an 

inappropriate overestimation. 

B. Number of Potentially Affected 

Contractor Firms and Workers 

1. Number of Potentially Affected 

Contractor Firms 

The Department identified a range of 

potentially affected firms. This includes 

both firms impacted by the DBA and 

firms impacted by the Related Acts. The 

more narrowly defined population 

(firms actively holding DBRA-covered 

contracts) includes 154,500 firms: 

61,200 Impacted by DBA and 93,300 

impacted by the Related Acts (Table 2). 

The broader population (including those 

bidding on DBA contracts but without 

active contracts, or those considering 

bidding in the future) includes 192,400 

firms: 99,100 Impacted by DBA and 

93,300 impacted by the Related Acts. 

Additionally, only a subset of these 

firms will experience a change in 

payroll costs. Those firms that already 

pay above the new wage determination 

rates calculated under the 30-percent 

rule will not be substantively affected. 

Because there is no readily usable 

source of data on the earnings of 

workers of these affected firms, the 

Department cannot definitively identify 

the number of firms that will experience 

changes in payroll costs due to changes 

in prevailing wage rates. 

i. Firms Currently Holding DBA 

Contracts 

USASpending.gov—the official source 

for spending data for the U.S. 

Government—contains Government 

award data from the Federal 

Procurement Data System Next 

Generation (FPDS–NG), which is the 

system of record for Federal 

procurement data. The Department used 

these data to identify the number of 

firms that currently hold DBA contracts. 

Although more recent data are available, 

the Department used data from 2019 to 

avoid any shifts in the data associated 

with the COVID–19 pandemic in 2020. 

Any long-run impacts of COVID–19 are 

speculative because this is an 

unprecedented situation, so using data 

from 2019 may be the best 

approximation the Department has for 

future impacts. The pandemic could 

cause structural changes to the 

economy, resulting in shifts in industry 

employment and wages. The 

Department welcomes comments and 

data on how the COVID–19 pandemic 

has impacted firms and workers on 

DBRA contracts, as well as the impact 

on construction and other affected 

industries as a whole. 

The Department identified firms 

working on DBRA contracts as contracts 

with an assigned NAICS code of 23 or 

if the ‘‘Construction Wage Rate 

Requirements’’ element is ‘‘Y,’’ meaning 

that the contracting agency flagged that 

the contract is covered by DBRA.129 130

The Department also excluded (1) 

contracts for financial assistance such as 

direct payments, loans, and insurance; 

and (2) contracts performed outside the 

U.S. because DBA coverage is limited to 

the 50 states, the District of Columbia, 

and the U.S. territories.131

In 2019, there were 14,000 unique 

prime contractors with active 

construction contracts in USASpending. 

However, subcontractors are also 

impacted by this proposed rule. The 

Department examined 5 years of 

USASpending data (2015 through 2019) 

and identified 47,200 unique 

subcontractors who did not hold 

contracts as primes in 2019. The 

Department used 5 years of data for the 

count of subcontractors to compensate 

for lower-tier subcontractors that may 

not be included in USASpending.gov. In 

total, the Department estimates 61,200 

firms currently hold DBA contracts and 

are potentially affected by this 

rulemaking under the narrow definition; 

however, to the extent that any of these 

firms already pay above the prevailing 

wage rates as determined under this 

proposed rule they will not actually be 

impacted by the rule. 

ii. All Potentially Affected Contractors 

(DBA Only) 

The Department also cast a wider net 

to identify other potentially affected 

contractors, both those directly affected 

(i.e., holding contracts) and those that 

plan to bid on DBA-covered contracts in 

the future. To determine the number of 

these firms, the Department identified 

construction firms registered in the 

General Services Administration’s 

(GSA) System for Award Management 

(SAM) since all entities bidding on 

Federal procurement contracts or grants 

must register in SAM. The Department 

believes that firms registered in SAM 

represent those that may be affected if 

the proposed rulemaking impacts their 

decision to bid on contracts or their 

competitiveness in the bidding process. 

However, it is possible that some firms 

that are not already registered in SAM 

could decide to bid on DBA-covered 

contracts after this proposed 

rulemaking; these firms are not included 

in the Department’s estimate. The 

proposed rule could also impact them if 

they are awarded a future contract. 

Using May 2021 SAM data, the 

Department identified 51,900 registered 

firms with construction listed as the 

primary NAICS code.132 The 

Department excluded firms with 

expired registrations, firms only 

applying for grants,133 government 

entities (such as city or county 

governments),134 foreign organizations, 

and companies that only sell products 

and do not provide services. SAM 

includes all prime contractors and some 

subcontractors (those who are also 

prime contractors or who have 

otherwise registered in SAM). However, 

the Department is unable to determine 

the number of subcontractors that are 

not in the SAM database. Therefore, the 

Department added the subcontractors 

identified in USASpending to this 

estimate. Adding these 47,200 firms 

identified in USASpending to the 

number of firms in SAM, results in 

99,100 potentially affected firms. 

iii. Firms Impacted by the Related Acts 

USASpending does not adequately 

capture all work performed under the 

Related Acts. Additionally, there is not 

a central database, such as SAM, where 

contractors working on Related Acts 

contracts must register. Therefore, the 

Department used a different 

methodology to estimate the number of 

firms impacted by the Related Acts. The 

Department estimated 883,900 workers 

work on Related Acts contracts (see 

section V.B.2.iii.), then divided that 

number by the average number of 

workers per firm (9.5) in the 


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135 2018 Statistics of U.S. Businesses (SUSB). 

U.S., NAICS sectors, larger employment sizes up to 

20,000+. https://www.census.gov/data/tables/2018/ 

econ/susb/2018-susb-annual.html. 

136See 86 FR 38816, 38816–38898. 

137See 81 FR 9591, 9591–9671 and 79 FR 60634– 

60733. 

138Bureau of Economic Analysis. (2020). Table 8. 

Gross Output by Industry Group. https://

www.bea.gov/news/2020/gross-domestic-productindustry-fourth-quarter-and-year-2019. ‘‘Gross 

output of an industry is the market value of the 

goods and services produced by an industry, 

including commodity taxes. The components of 

gross output include sales or receipts and other 

operating income, commodity taxes, plus inventory 

change. Gross output differs from value added, 

which measures the contribution of the industry’s 

labor and capital to its gross output.’’ 

construction industry.135 This results in 

93,300 firms. Some of these firms likely 

also perform work on DBA contracts. 

However, because the Department has 

no information on the size of this 

overlap, the Department has assumed all 

are unique firms. The Department 

welcomes comments and data on the 

number of firms working on Related 

Acts contracts. 

TABLE 2—RANGE OF NUMBER OF POTENTIALLY AFFECTED FIRMS

Source Number 

Total Count (Davis-Bacon and Related Acts) 

Narrow definition a ............................................................................................................................................................................... 154,500 

Broad definition b ................................................................................................................................................................................. 192,400 

DBA (Narrow Definition) 

Total ..................................................................................................................................................................................................... 61,200 

Prime contractors from USASpending ......................................................................................................................................... 14,000 

Subcontractors from USASpending ............................................................................................................................................. 47,200 

DBA (Broad Definition) 

Total ..................................................................................................................................................................................................... 99,100 

SAM .............................................................................................................................................................................................. 51,900 

Subcontractors from USASpending ............................................................................................................................................. 47,200 

Related Acts 

Total ..................................................................................................................................................................................................... 93,300 

Related Acts workers ................................................................................................................................................................... 883,900 

Employees per firm (SUSB) ......................................................................................................................................................... 9.5 

a Firms actively holding DBRA-covered contracts. b Firms who may be bidding on DBA contracts or considering bidding in the future. 

2. Number of Potentially Affected 

Workers 

There are no readily available 

government data on the number of 

workers working on DBA contracts; 

therefore, to estimate the number of 

these workers, the Department 

employed the approach used in the 

2021 final rule, ‘‘Increasing the 

Minimum Wage for Federal 

Contractors,’’ which implements 

Executive Order 14026.136 That 

methodology is based on the 2016 

rulemaking implementing Executive 

Order 13706’s paid sick leave 

requirements, which contained an 

updated version of the methodology 

used in the 2014 rulemaking for 

Executive Order 13658.137 Using this 

methodology, the Department estimated 

the number of workers who work on 

DBRA contracts, representing the 

number of ‘‘potentially affected 

workers,’’ is 1.2 million potentially 

affected workers. Some of these workers 

will not be affected because while they 

work on DBRA-covered contracts they 

are not in occupations covered by the 

DBRA prevailing wage determinations 

(e.g., laborers or mechanics). 

The Department estimated the 

number of potentially affected workers 

in three parts. First, the Department 

estimated employees and self-employed 

workers working on DBA contracts in 

the 50 States and the District of 

Columbia. Second, the Department 

estimated the number of workers and 

self-employed DBRA workers in the 

U.S. territories. Third, the Department 

estimated the number of potentially 

affected workers working on contracts 

covered by Davis-Bacon Related Acts. 

i. Workers on DBA Contracts in the 50 

States and the District of Columbia 

DBA contract employees were 

estimated by calculating the ratio of 

Federal contracting expenditures to total 

output in NAICS 23: Construction. Total 

output is the market value of the goods 

and services produced by an industry. 

This ratio is then applied to total private 

employment in that industry (Table 3). 

The Department used Federal 

contracting expenditures from 

USASpending.gov data excluding (1) 

financial assistance such as direct 

payments, loans, and insurance; and (2) 

contracts performed outside the U.S. 

To determine the share of all output 

associated with Federal Government 

contracts, the Department divided 

contracting expenditures by gross 

output in NAICS 23.138 This results in 

an estimated 3.27 percent of output in 


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Federal Register / Vol. 87, No. 53 / Friday, March 18, 2022 / Proposed Rules 15767 

139Bureau of Labor Statistics. OEWS. May 2019. 

Available at: http://www.bls.gov/oes/. 

140 GDP limited to personal consumption 

expenditures and gross private domestic 

investment. 

141 In Puerto Rico, personal consumption 

expenditures plus gross private domestic 

investment equaled $71.2 billion. Therefore, Puerto 

Rico gross output was calculated as $71.2 billion × 

1.8 × 2.7 percent. 

142For the U.S. territories, the unincorporated 

self-employed are excluded because CPS data are 

not available on the number of unincorporated selfemployed workers in U.S. territories. 

143USASpending includes information on grants, 

assistance, and loans provided by the Federal 

government. However, this does not include all 

covered projects, it does not capture the full value 

of the project because it is just the Federal share 

(i.e., excludes spending by State and local 

governments or private institutions that are also 

subject to DBRA labor standards because of the 

Federal share on the project), and it cannot easily 

be restricted to construction projects because there 

is no NAICS or product service code (PSC) variable. 

144Census Bureau. Annual Value of Public 

Construction Put in Place 2009–2020. Available at: 

https://www.census.gov/construction/c30/ 

historical_data.html. 

145Estimate based on personal communications 

with the Office of Labor Standards Enforcement and 

Economic Opportunity at HUD. 

the construction industry covered by 

Federal Government contracts (Table 3). 

The Department then multiplied the 

ratio of covered-to-gross output by 

private sector employment in the 

construction industry (9.1 million) to 

estimate the share of employees working 

on covered contracts. The Department’s 

private sector employment number is 

primarily comprised of construction 

industry employment from the May 

2019 Occupational Employment and 

Wage Statistics (OEWS), formerly the 

Occupational Employment Statistics.139

However, the OEWS excludes 

unincorporated self-employed workers, 

so the Department supplemented OEWS 

data with data from the 2019 Current 

Population Survey Merged Outgoing 

Rotation Group (CPS MORG) to include 

unincorporated self-employed in the 

estimate of workers. 

According to this methodology, the 

Department estimated there are 297,900 

workers on DBA covered contracts in 

the 50 States and the District of 

Columbia. However, these laws only 

apply to wages for mechanics and 

laborers, so some of these workers 

would not be affected by these changes 

to DBA. 

This methodology represents the 

number of year-round-equivalent 

potentially affected workers who work 

exclusively on DBA contracts. Thus, 

when the Department refers to 

potentially affected employees in this 

analysis, the Department is referring to 

this conceptual number of people 

working exclusively on covered 

contracts. The total number of 

potentially affected mechanics and 

laborers will likely exceed this number 

because affected workers likely do not 

work exclusively on DBA contracts. 

ii. Workers on DBRA Contracts in the 

U.S. Territories 

The methodology to estimate 

potentially affected workers in the U.S. 

territories is similar to the methodology 

above for the 50 States and the District 

of Columbia. The primary difference is 

that data on gross output in the 

territories are not available, and so the 

Department had to make some 

additional assumptions. The 

Department approximated gross output 

in the territories by calculating the ratio 

of gross output to Gross Domestic 

Product (GDP) for the U.S. (1.8), then 

multiplying that ratio by GDP in each 

territory to estimate total gross 

output.140 To limit gross output to the 

construction industry, the Department 

multiplied it by the share of the 

territory’s payroll in NAICS 23. For 

example, the Department estimated that 

Puerto Rico’s gross output in the 

construction industry totaled $3.6 

billion.141

The rest of the methodology follows 

the methodology for the 50 States and 

the District of Columbia. To determine 

the share of all output associated with 

Government contracts, the Department 

divided contract expenditures by gross 

output. Federal contracting 

expenditures from USASpending.gov 

data show that the Government spent 

$993.3 million on construction contracts 

in 2019 in American Samoa, the 

Commonwealth of the Northern Mariana 

Islands Guam, Puerto Rico, and the U.S. 

Virgin Islands. The Department then 

multiplied the ratio of covered contract 

spending to gross output by private 

sector employment to estimate the 

number of workers working on covered 

contracts (6,100).142

iii. Workers on Related Acts Contracts 

This proposed rulemaking will also 

impact workers on DBRA-covered 

contracts in the 50 States and the 

District of Columbia. Data are not 

available on the number of workers 

covered by the Related Acts. 

Additionally, neither USASpending nor 

any other database fully captures this 

population.143 Therefore, the 

Department used a different approach to 

estimate the number of potentially 

affected workers for DBRA contracts. 

The Department identified that the 

total State and local government 

construction spending as reported by 

the Census Bureau was $318 billion in 

2019.144 The Department then applied 

adjustment factors to adjust for the share 

of State and local expenditures that are 

covered by the Related Acts. Data on the 

share of State and local expenditures 

covered by the Related Acts are not 

available, therefore the Department used 

rough approximations. The Department 

requests comments and data on the 

appropriate adjustment factors. The 

Department assumed half of the total 

State and local government construction 

expenditures are subject to a DBRA, 

resulting in estimated expenditures of 

$158 billion. To this, the Department 

added $3 billion to represent U.S. 

Department of Housing and Urban 

Development (HUD) backed mortgage 

insurance for private construction 

projects.145

As was done for DBA, the Department 

divided contracting expenditures by 

gross output, and multiplied that ratio 

by the estimate of private sector 

employment used above to estimate the 

share of workers working on Related 

Acts-covered contracts (883,900). 

TABLE 3—NUMBER OF POTENTIALLY AFFECTED WORKERS

Private output 

(billions) a

Contracting 

output 

(millions) b

Share output 

from covered 

contracting 

Private-sector 

workers 

(1,000s) c

Workers 

DBRA 

contracts 

(1,000s) d

DBA, excl. territories ............................................................ $1,662 $54,400 3.27% 9,100 297.9 

DBRA, territories .................................................................. 5 993 (e) 35 6.1 

Related Acts ......................................................................... 1,667 161,297 9.68% 9,135 883.9 


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146 Dong, Xiuwen, Xuanwen Wang, Rebecca Katz, 

Gavin West, and Bruce Lippy. The Construction 

Chart Book: The U.S. Construction Industry and Its 

Workers, 6th ed. Silver Spring: CPWR-The Center 

for Construction Research and Training, 2018, 18. 

https://www.cpwr.com/wp-content/uploads/ 

publications/The_6th_Edition_Construction_

eChart_Book.pdf. 

TABLE 3—NUMBER OF POTENTIALLY AFFECTED WORKERS—Continued 

Private output 

(billions) a

Contracting 

output 

(millions) b

Share output 

from covered 

contracting 

Private-sector 

workers 

(1,000s) c

Workers 

DBRA 

contracts 

(1,000s) d

Total .............................................................................. ........................ 216,700 ........................ ........................ 1,188.0 

aBureau of Economic Analysis, NIPA Tables, Gross output. 2019. For territories, gross output estimated by multiplying (1) total GDP for the 

territory by the ratio of total gross output to total GDP for the U.S. and (2) the share of national gross output in the construction industry. bFor DBA, and DBRA in the territories, data from USASpending.gov for contracting expenditures for covered contracts in 2019. For Related 

Acts, data from Census Bureau on value of State and local government construction put in place, adjusted for coverage ratios. The Census data 

includes some data for territories but may be underestimated. cOEWS May 2019. For non-territories, also includes unincorporated self-employed workers from the 2019 CPS MORG. 

dAssumes share of expenditures on contracting is same as share of employment. Assumes workers work exclusively, year-round on DBRA 

covered contracts. eVaries by U.S. Territory. 

3. Demographics of the Construction 

Industry 

In order to provide information on the 

types of workers that may be affected by 

this rule, the Department presents 

demographic characteristics of 

production workers in the construction 

industry. For purposes of this 

demographic analysis only, the 

Department is defining the construction 

industry as workers in the following 

occupations: 

• Construction and extraction 

occupations 

• Installation, maintenance, and repair 

occupations 

• Production occupations 

• Transportation and material moving 

occupations 

The Department notes that the 

demographic characteristics of workers 

on DBRA projects may differ from the 

general construction industry; however, 

data on the demographics of workers on 

DBRA projects is unavailable. 

Demographics of the general workforce 

are also presented for comparison. The 

Department welcomes comments and 

data on how the demographics of 

workers on DBRA projects would differ 

from the demographics of workers in the 

construction industry as a whole. 

Tabulated numbers are based on 2019 

CPS data for consistency with the rest 

of the analysis and to avoid potential 

impacts of COVID–19. Additional 

information on the demographics of 

workers in the construction industry 

can be found in The Construction Chart 

Book: The U.S. Construction Industry 

and Its Workers.146

The vast majority of workers in the 

construction industry are men, 97 

percent (Table 4), which is significantly 

higher than the general workforce where 

53 percent are men. Workers in 

construction are also significantly more 

likely to be Hispanic than the general 

workforce; 38 percent of construction 

workers are Hispanic, compared with 18 

percent of the workforce. Lastly, while 

many construction workers may have 

completed registered apprenticeship 

programs 84 percent of workers in the 

construction industry have a high 

school diploma or less, compared with 

54 percent of the general workforce. 

TABLE 4—DEMOGRAPHICS OF WORKERS IN THE CONSTRUCTION INDUSTRY

Production 

workers in 

construction 

Total 

workforce 

(%) 

By Region 

Northeast ................................................................................................................................................. 16.4 17.9 

Midwest .................................................................................................................................................... 16.4 21.9 

South ........................................................................................................................................................ 41.7 36.9 

West ......................................................................................................................................................... 25.5 23.3 

By Sex 

Male ......................................................................................................................................................... 97.1 53.4 

Female ..................................................................................................................................................... 2.9 46.6 

By Race 

White only ................................................................................................................................................ 87.1 77.2 

Black only ................................................................................................................................................ 7.5 12.4 

All others .................................................................................................................................................. 5.4 10.4 

By Ethnicity 

Hispanic ................................................................................................................................................... 38.0 18.1 

Not Hispanic ............................................................................................................................................ 62.0 81.9 


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147FY2019 Data and Statistics, U.S. Department 

of Labor, Office of Apprenticeship. https://

www.dol.gov/agencies/eta/apprenticeship/about/ 

statistics/2019. 

148This includes the median base wage of $32.30 

from the 2020 OEWS plus benefits paid at a rate of 

46 percent of the base wage, as estimated from the 

BLS’s Employer Costs for Employee Compensation 

(ECEC) data, and overhead costs of 17 percent. 

OEWS data available at: http://www.bls.gov/oes/ 

current/oes131141.htm. 

TABLE 4—DEMOGRAPHICS OF WORKERS IN THE CONSTRUCTION INDUSTRY—Continued 

Production 

workers in 

construction 

Total 

workforce 

(%) 

By Race and Ethnicity 

White only, Not Hispanic ......................................................................................................................... 52.2 61.1 

Black only, Not Hispanic .......................................................................................................................... 6.2 11.6 

By Age 

16–25 ....................................................................................................................................................... 15.2 16.7 

26–55 ....................................................................................................................................................... 71.6 64.2 

56+ ........................................................................................................................................................... 13.3 19.1 

By Education 

No degree ................................................................................................................................................ 23.0 8.9 

High school diploma ................................................................................................................................ 60.6 45.3 

Associate’s degree .................................................................................................................................. 9.3 10.7 

Bachelor’s degree or advanced ............................................................................................................... 7.2 35.1 

Note: CPS data for 2019. 

The Department has also presented 

some demographic data on Registered 

Apprentices, as they are the pipeline for 

future construction workers. These 

demographics come from Federal 

Workload data, which covers the 25 

states administered by the U.S. 

Department of Labor’s Office of 

Apprenticeship and national registered 

apprenticeship programs.147 Note that 

this data includes apprenticeships for 

other industries beyond construction, 

but 68 percent of the active apprentices 

are in the construction industry, so the 

Department believes this data could be 

representative of that industry. Of the 

active apprentices in this data set, 9.1 

percent are female and 90.9 percent are 

male. The data show that 58.4 percent 

of active apprentices are White, 10.5 

percent are Black or African American, 

2.4 percent are American Indian or 

Alaska Native, 1.5 percent are Asian, 

and 0.8 percent are Native Hawaiian or 

Other Pacific Islander. The data also 

show that 23.6 percent of active 

apprentices are Hispanic. 

C. Costs of the Proposed Rule 

This section quantifies direct 

employer costs associated with the 

proposed rule. The Department 

considered employer costs associated 

with both (a) the return to the ‘‘threestep’’ method for determining the 

prevailing wage (i.e., the change from a 

50 percent threshold to a 30 percent 

threshold) and (b) the incorporation of 

a mechanism to periodically update 

certain non-collectively bargained 

prevailing wage rates. Costs presented 

are combined for both provisions. 

However, the Department believes most 

of the costs will be associated with the 

second provision, as will be discussed 

below. The Department estimated both 

regulatory familiarization costs and 

implementation costs. Year 1 costs are 

estimated to total $12.6 million. Average 

annualized costs across the first 10 years 

of implementation are estimated to be 

$3.9 million (using a 7 percent discount 

rate). Transfers resulting from these 

provisions are discussed in section V.D. 

1. Regulatory Familiarization Costs 

The proposed rule will impose direct 

costs on some covered contractors who 

will review the regulations to 

understand how the prevailing wage 

determination methodology will change 

and how certain non-collectively 

bargained rates will be periodically 

updated. However, the Department 

believes these time costs will be small. 

Firms are simply required to pay no less 

than the prevailing wage and fringe 

benefit rates set forth in the wage 

determinations applicable to their 

covered contracts; they do not need to 

familiarize themselves with the 

methodology used to develop those 

prevailing wage rates in order to comply 

with them. Costs associated with 

ensuring compliance are included as 

implementation costs. 

For this analysis, the Department has 

included all firms who either hold DBA 

or Related Acts contracts or who are 

considering bidding on work (192,400 

firms). However, this may be an 

overestimate, because firms who are 

registered in SAM might not bid on a 

DBA contract, and therefore may not 

review these regulations. The 

Department assumes that, on average, 1 

hour of a human resources staff 

member’s time will be spent reviewing 

the rulemaking. Some firms will spend 

more time reviewing the rule, but others 

will spend less or no time reviewing the 

rule. The cost of this time is the median 

loaded wage for a Compensation, 

Benefits, and Job Analysis Specialist of 

$52.65 per hour.148 Therefore, the 

Department has estimated regulatory 

familiarization costs to be $10.1 million 

($52.65 per hour × 1.0 hour × 192,400 

contractors) (Table 5). The Department 

has included all regulatory 

familiarization costs in Year 1. New 

entrants will not incur any additional 

regulatory familiarization costs 

attributable to this rule; had this rule 

not been proposed, they still would 

have incurred the costs of regulatory 

familiarization with existing provisions. 

Average annualized regulatory 

familiarization costs over 10 years, 

using a 7 percent discount rate, are $1.4 

million. 

2. Implementation Costs 

Firms will incur costs associated with 

implementing updated prevailing wage 

rates. When preparing a bid on a DBRAcovered contract, the contractor must 

review the wage determination 

identified by the contracting agency as 

appropriate for the work and determine 

the wage rates applicable for each 

occupation or classification to perform 

work on the contract. Once that contract 


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149With the exception of certain significant 

changes; see section III.B.1.vi.(B). 

150The Department used the number of surveys 

started between 2002 (first year with data readily 

available) and 2019 (last year prior to COVID–19) 

to estimate that 7.8 surveys are started annually. 

This is a proxy for the number of surveys published 

on average in a year. 

151The Department divided 7.8 surveys per year 

by 50 states. The District of Columbia and the 

territories were excluded from the denominator 

because these tend to be surveyed less often (with 

the exception of Guam which is surveyed regularly 

due to Related Act funding). 

152The ‘‘SU’’ designation currently is used on 

general wage determinations when the prevailing 

wage is set through the weighted average method 

based on non-collectively bargained rates or a mix 

of collectively bargained rates and non-collectively 

bargained rates, or when a non-collectively 

bargained rate prevails. 

is signed, the specified prevailing wages 

generally remain in effect through the 

life of that contract.149

The proposed periodic adjustment 

rule will generally affect the frequency 

with which prevailing wage rates are 

updated through both the provision to 

update old, outmoded rates, and moving 

forward, the provision to periodically 

update rates when that does not occur 

through the survey process (see section 

V.D.). Implementation costs may be 

incurred by affected firms through the 

need to update compensation rates in 

their relevant payroll systems. 

Currently, only a fraction of prevailing 

wages can be expected to change each 

year. Because the Department intends to 

update older rates to more accurately 

represent wages and benefits being paid 

in the construction industry, and, 

moving forward, more published wage 

rates will change more frequently than 

in the past, firms will spend more time 

updating prevailing wage rates for 

contractual purposes than they have in 

the past. 

To estimate the additional cost 

attributable to the need to update outof-date rates, it is necessary to estimate 

the number of firms that need to update 

rates each year and the additional time 

these firms will spend implementing the 

new wage and fringe benefit rates due 

to this provision. The Department 

estimates that on average new wage 

rates are published from 7.8 surveys per 

year.150 These surveys may cover an 

entire State or a subset of counties, and 

multiple construction types or a single 

type of construction. For simplicity, the 

Department assumed that each survey 

impacts all contractors in the State, all 

construction types, and all classes of 

laborers and mechanics covered by 

DBRA. Under these assumptions, the 

Department assumed that each year 15.6 

percent of firms with DBRA contracts, 

roughly 24,100 firms (0.156 × 154,500 

firms), might already be affected by 

changes in prevailing wage rates in any 

given year and thus will not incur 

additional implementation costs 

attributable to the rule.151

Additionally, there may be some firms 

that already update prevailing wage 

rates periodically to reflect CBA 

increases. These firms generally will not 

incur any additional implementation 

costs because of this rule. The 

Department lacks specific data on how 

many firms fall into this category, but 

used information on the share of rates 

that are collectively bargained under the 

current method to help refine the 

estimate of firms with implementation 

costs. According to section V.D., 24 

percent of rates are CBA rates under the 

current method, meaning 37,080 firms 

(0.24 × 154,500) might already be 

affected by changes in prevailing wages 

in any given year. Combining this 

number with the 24,100 firms calculated 

above, 61,180 firms in total would not 

incur additional implementation costs 

with this rule. The Department 

welcomes comments and data on what 

is the appropriate share of firms who 

already update wage rates due to CBA 

increases. 

Therefore, 93,320 firms (154,500 firms 

¥ 61,180 firms) are assumed to not 

update prevailing wage information in 

any given year because prevailing wage 

rates were unchanged in their areas of 

operation, and would therefore incur 

implementation costs. Under the 

proposed provisions, the Department 

intends to first update certain outdated 

non-collectively bargained rates 152

(currently designated as ‘‘SU’’ rates) up 

to their current value to better track 

wages and benefits being paid in the 

construction industry over a staggered 

period. Then, in the future, the 

Department intends to update noncollectively bargained rates afterward as 

needed, and not more frequently than 

every 3 years. Therefore, all firms that 

intend to bid on future contracts may 

need to update relevant prevailing wage 

rates and thus incur implementation 

costs. The Department therefore 

assumes that these 93,230 firms may be 

expected to incur additional costs 

updating rates each year. The 

Department acknowledges that this 

estimate of firms may be an 

overestimate, because this proposed rule 

states that rates will be updated no more 

frequently than every 3 years. In each 

year, only a fraction of firms will have 

to update their prevailing wage rates, 

but the Department has included all 

firms in the estimate so as to not 

underestimate costs. 

The Department estimated it will take 

a half hour on average for firms to adjust 

their wage rates each year for purposes 

of bidding on DBRA contracts. The 

Department believes that this average 

estimated time is appropriate because 

some firms will spend no time on 

implementation costs. Only a subset of 

firms will experience a change in 

payroll costs, because those firms that 

already pay above the new wage 

determination rates calculated under the 

30-percent rule will not need to incur 

any implementation costs. 

Implementation time will be incurred 

by human resource workers (or a 

similarly compensated employee) who 

will implement the changes. As with 

previous costs, these workers earn a 

loaded hourly wage of $52.65. 

Therefore, total Year 1 implementation 

costs were estimated to equal $2.5 

million ($52.65 × 0.5 hour × 93,320 

firms). The average annualized 

implementation cost over 10 years, 

using a 7 percent discount rate, is $2.5 

million. The Department welcomes 

comments on exactly how long it will 

take firms to adjust their wage rates each 

year. 

TABLE 5—SUMMARY OF COSTS

[2020 dollars] 

Variable Total Regulatory 

familiarization costs 

Implementation 

costs 

Year 1 Costs 

Potentially affected firms ..................................................................................... ................................ 192,400 93,320 

Hours per firm ...................................................................................................... ................................ 1 0.5 

Loaded wage rate a .............................................................................................. ................................ $52.65 $52.65 


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Federal Register / Vol. 87, No. 53 / Friday, March 18, 2022 / Proposed Rules 15771 

TABLE 5—SUMMARY OF COSTS—Continued 

[2020 dollars] 

Variable Total Regulatory 

familiarization costs 

Implementation 

costs 

Cost ($1,000s) ..................................................................................................... $12,600 $10,100 $2,500 

Years 2–10 ($1,000s) 

Annual cost .......................................................................................................... $2,500 $0 $2,500 

Average Annualized Costs ($1,000s) 

3% discount rate .................................................................................................. $3,700 $1,200 $2,500 

7% discount rate .................................................................................................. $3,900 $1,400 $2,500 

a 2020 OEWS median wage for Compensation, Benefits, and Job Analysis Specialists (SOC 13–1141) of $32.30 multiplied by 1.63: The ratio 

of loaded wage to unloaded wage from the 2020 ECEC (46 percent) plus 17 percent for overhead. 

3. Other Provisions Not Analyzed 

For certain provisions contained in 

this proposal, the Department expects 

that any impacts of the provision would 

be negligible, as discussed below. The 

Department welcomes comments with 

data to help analyze these provisions. 

The Department proposes that 

prevailing wage rates set by State and 

local governments may be adopted as 

Davis-Bacon prevailing wage rates 

under specified conditions. Specifically, 

the Department proposes that the 

Administrator may adopt such a rate if 

the Administrator determines that: (1) 

The State or local government sets wage 

rates, and collects relevant data, using a 

survey or other process that is open to 

full participation by all interested 

parties; (2) the wage rate reflects both a 

basic hourly rate of pay as well as any 

prevailing fringe benefits, each of which 

can be calculated separately; (3) the 

State or local government classifies 

laborers and mechanics in a manner that 

is recognized within the field of 

construction; and (4) the State or local 

government’s criteria for setting 

prevailing wage rates are substantially 

similar to those the Administrator uses 

in making wage determinations. These 

conditions are intended to provide 

WHD with the flexibility to adopt State 

and local rates where appropriate while 

also ensuring that adoption of such rates 

is consistent with the statutory 

requirements of the Davis-Bacon Act. 

These conditions are also intended to 

ensure that arbitrary distinctions are not 

created between jurisdictions where 

WHD makes wage determinations using 

its own surveys and jurisdictions where 

WHD adopts State or local prevailing 

wage rates. 

The Department does not possess 

sufficient data to conduct an analysis 

comparing prevailing wage rates set by 

State and local governments nationwide 

to those established by the 

Administrator. However, by definition, 

any adopted State or local prevailing 

wage must be set using criteria that are 

substantially similar to those used by 

the Administrator, so the resulting wage 

rates are likely to be similar to those 

which would have been established by 

the Administrator. The proposed change 

would also allow WHD to have more 

current rates in places where wage 

surveys are out-of-date, and to avoid 

WHD duplicating wage survey work that 

states and localities are already doing. 

The Department believes that this 

proposal could result in cost savings, 

which are discussed further in section 

V.E. 

The Department also proposes to 

eliminate the across-the-board 

restriction on mixing rural and 

metropolitan county data to allow for a 

more flexible case-by-case approach to 

using such data. Under this proposal, if 

sufficient data were not available to 

determine a prevailing wage in a 

county, the Department would be 

permitted to use data from surrounding 

counties whether those counties may be 

designated overall as rural or 

metropolitan. While sufficient data for 

analyzing the impact of this proposal 

are not available, the Department 

believes this proposal will improve the 

quality and accuracy of wage 

determinations by including data from 

counties that likely share and reflect the 

same labor market conditions when 

appropriate. 

The proposal to expressly authorize 

WHD to list classifications and 

corresponding wage and fringe benefit 

rates on wage determinations even 

when WHD has received insufficient 

data through its wage survey process is 

expected to ease the burden on 

contracting entities, both public and 

private, by improving the timeliness of 

information about conformed wage 

rates. For classifications for which 

conformance requests are regularly 

submitted, the Administrator would be 

authorized to list the classification on 

the wage determination along with wage 

and fringe benefit rates that bear a 

‘‘reasonable relationship’’ to the wage 

and fringe benefit rates contained in the 

wage determination, in the same 

manner that such classifications and 

rates are currently conformed by WHD 

pursuant to current § 5.5(a)(1)(ii)(A)(3). 

In other words, for a classification for 

which conformance requests are 

regularly submitted, WHD would be 

expressly authorized to essentially ‘‘preapprove’’ certain conformed 

classifications and wage rates, thereby 

providing contracting agencies, 

contractors and workers with advance 

notice of the minimum wage and fringe 

benefits required to be paid for work 

within those classifications, reducing 

uncertainty and costly delays in 

determining wage rates for the 

classifications. 

For example, suppose the Department 

was not able to publish a prevailing 

wage rate for carpenters on a building 

wage determination for a county due to 

insufficient data. Currently, every 

contractor in that county working on a 

Davis-Bacon building project that 

needed a carpenter would have to 

submit a conformance request for each 

of their building projects in that county. 

Moreover, because conformances cannot 

be submitted until after contract award, 

those same contractors would have a 

certain degree of uncertainty in their 

bidding procedure, as they would not 

know the exact rate that they would 

have to pay to their carpenters. This 

proposal would eliminate that 

requirement for classifications where 

conformance requests are common. 

While the Department does not have 

information on how much 

administrative time and money is spent 

on these tasks, for the commonlyrequested classifications, this proposal 


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153 Data were obtained from the Automated 

Survey Data System (ASDS), the data system used 

by the Department to compile and process WD–10 

submissions. Out of the 21 surveys that occurred 

during this time period and met sufficiency 

standards, these 19 surveys are all of the ones with 

usable data for this analysis. 

154The Department chose to calculate prevailing 

wages under the current and proposed definitions 

to ensure comparability between the methods. The 

Department compared calculated current rates to 

the published wage determinations to verify the 

accuracy of its method. The calculated current rates 

generally match the wage and the fringe benefit 

rates within a few cents. However, there are a few 

instances that do not match, but the Department 

does not believe these differences bias the 

comparisons to the calculated proposed 30 percent 

prevailing definition. 

155This model, while useful for this illustrative 

analysis, may not be relevant for future surveys. 

The methodology assumes that the level of 

participation by firms in WHD’s wage survey 

process would be the same if the standard were 30 

percent and is mostly reflective of states with lower 

union densities. 

could make things more streamlined 

and efficient for the contractors. 

There are a few places in the NPRM 

where the Department is proposing to 

add language that clarifies existing 

policies. For example, the Department 

proposes to add language to the 

definitions of ‘‘building or work’’ and 

‘‘public building or public work’’ to 

clarify that these definitions can be met 

even when the construction activity 

involves only a portion of an overall 

building, structure, or improvement. 

Also, the Department proposes to add 

language regarding the ‘‘material 

suppliers’’ exemption. Although this 

language is just a clarification of 

existing guidelines and not a change in 

policy, the Department understands that 

contracting agencies may have differed 

in their implementation of Davis-Bacon 

labor standards. In these cases, there 

may be firms who are newly applying 

Davis-Bacon labor standards because of 

the clarifications in this rule. This could 

result in additional rule familiarization 

and implementation costs for these 

firms, and transfers to workers in the 

form of higher in wages if the 

contractors are currently paying below 

the prevailing wage. 

The Department does not have data to 

estimate to what extent contracting 

agencies have not been implementing 

Davis-Bacon labor standards but 

welcomes comments and data to help 

inform an estimate of the impact of 

these provisions. Specifically, the 

Department welcomes comments from 

commercial building owners who lease 

space to the Federal Government on 

how this provision would affect costs 

and the wages paid to workers. 

Other proposed provisions are also 

likely to have no significant economic 

impact, such as the proposed 

clarification of the ‘‘material supplier’’ 

exception in § 5.2, and the proposal 

regarding the applicable apprenticeship 

ratios and wage rates when work is 

performed by apprentices in a different 

State than the State in which the 

apprenticeship program was originally 

registered. 

D. Transfer Payments 

1. The Return to the ‘‘Three-Step’’ 

Method for Determining the Prevailing 

Wage 

i. Overview 

The proposed revision to the 

definition of prevailing wage (i.e., the 

return to the ‘‘three-step process’’) may 

lead to income transfers to or from 

workers. Under the ‘‘three-step process’’ 

when a wage rate is not paid to a 

majority of workers in a particular 

classification, a wage rate will be 

considered prevailing if it is paid to at 

least 30 percent of such workers. Thus, 

under this proposal fewer future wage 

determinations will be established 

based on a weighted average. 

Consequently, some future wage 

determinations may be different than 

they otherwise would as a result of this 

proposed provision. The Department is 

not able to quantify the impact of this 

proposed change because it will apply 

to surveys yet to be conducted, covering 

classifications and projects in locations 

not yet determined. Nonetheless in an 

effort to illustrate the potential impact, 

the Department conducted a 

retrospective analysis that considers the 

impact of the 30-percent rule had it 

been used to set the wage 

determinations for a few occupations in 

recent years. 

Specifically, to demonstrate the 

impact of this provision, the Department 

compiled data for seven select 

classifications from 19 surveys across 17 

states from 2015 to 2018 (see Appendix 

A).153 This sample of rates covers all 

four construction types, and includes 

metro and rural counties, and a variety 

of geographic regions. The seven select 

key classifications considered are as 

follows: 

• Building and residential 

construction: Bricklayers, common 

laborers, plumbers, and roofers. 

• Heavy and highway construction: 

Common laborers, cement masons, and 

electricians. 

In total, the sample is comprised of 

3,097 county-classification observations. 

Because this sample only covers seven 

out of the many occupations covered by 

DBRA and all classification-county 

observations are weighted equally in the 

analysis, the Department believes the 

results need to be interpreted with care 

and cannot be extrapolated to 

definitively quantify the overall impact 

of the 30-percent rule. Instead, these 

results should be viewed as an 

informative illustration of the potential 

direction and magnitude of transfers 

that will be attributed to this proposed 

provision. 

The Department began its 

retrospective analysis by applying the 

current prevailing wage setting 

protocols (see Appendix B) to this 

sample of wage data to calculate the 

current prevailing wage and fringe 

benefit rates.154 The Department then 

applied the proposed 30-percent rule to 

the same sample of wage data.155 Then 

the Department compared the wage 

rates determined by the proposed 

protocol with current wage 

determinations. Results are reported at 

the county level (i.e., one observation 

represents one classification in one 

county). 

The results differ depending on how 

heavily unionized the construction 

industry is in the states analyzed (and 

thus how many union rates are 

submitted in response to surveys). In 

Connecticut, for example, the 

Department found that estimated rates 

were little changed because the 

construction industry in Connecticut is 

highly unionized and union rates 

prevail under both the 30 percent and 

the 50 percent threshold. Conversely, in 

Florida, which is less unionized, there 

is more variation in how wage rates 

would change. For Florida, calculated 

prevailing wage rates generally changed 

from an average rate (e.g., insufficient 

identical rates to determine a single 

prevailing rate under the current 

protocol) to a non-collectively bargained 

single prevailing rate. Depending on the 

classification and county, the prevailing 

hourly wage rate may have increased or 

decreased because of the change in 

methodology. 

Results may also differ by 

construction type. In particular, changes 

to highway prevailing wages may differ 

from changes in other construction 

types because they frequently rely on 

certified payroll. Thus, many of the 

wages used to calculate the prevailing 

wage reflect prevailing wages at the time 

of the survey. 

ii. Results 

Table 6 compares the share of 

counties with calculated wage 

determinations by ‘‘publication rule’’ 

(i.e., the rule under which the wage rate 

was or would be published): (1) An 

average rate, (2) a collectively bargained 


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single prevailing rate, and (3) a noncollectively bargained single prevailing 

rate. Fringe benefit rate results also 

include the number of counties where 

the majority of workers received zero 

fringe benefits. It also shows the change 

in the number of rates in each 

publication rule category. 

For the surveys analyzed, the majority 

of current county wage rates were based 

on averages (1,954 ÷ 3,097 = 63 percent), 

about 25 percent were a single 

prevailing collectively bargained rate, 

and 12 percent were a single prevailing 

non-collectively bargained rate. Using 

the 30 percent requirement for a single 

prevailing rate, the number of county 

wage rates that would be based on 

averages decreased to 31 percent (948 ÷ 

3,097). The percentage of rates that 

would be based on a single wage rate 

increased for both non-collectively 

bargained and collectively bargained 

rates, although more wage rates would 

be based on non-collectively bargained 

rates than collectively bargained rates. 

For fringe benefit rates, fringe benefits 

do not prevail for a similar percent in 

both scenarios, (i.e., ‘‘no fringes’’): 50 

percent of current rates, 48 percent of 

proposed ‘‘three-step process’’ rates. 

The share determined as average rates 

decreased from 22 percent to 10 percent. 

The prevalence of single prevailing 

fringe benefit rates increased for both 

non-collectively bargained and 

collectively bargained rates, with 

slightly more becoming collectively 

bargained rates than non-collectively 

bargained rates. 

The total number of counties will 

differ by classification based on the 

State, applicable survey area (e.g., 

statewide, metro only), and whether the 

data submitted for the classification met 

sufficiency requirements. 

TABLE 6—PREVALENCE OF CALCULATED PREVAILING WAGES BY PUBLICATION RULE

Laborers Plumbers Roofers Bricklayers Cement 

masons Elec-tricians Total 

Count ............................................................. 949 504 545 379 360 360 3,097 

Current Hourly Rate 

Average ......................................................... 82% 57% 55% 42% 68% 53% 63% 

Single Prevailing—Union .............................. 12% 40% 23% 39% 4% 44% 25% 

Single Prevailing—Non-Union ....................... 6% 3% 22% 19% 28% 4% 12% 

Proposed ‘‘Three-Step Process’’ Hourly Rate a

Average ......................................................... 47% 22% 26% 18% 40% 11% 31% 

Single Prevailing—Union .............................. 21% 46% 25% 45% 7% 80% 34% 

Single Prevailing—Non-Union ....................... 32% 31% 49% 37% 53% 9% 36% 

Change for Hourly Rate (Percentage Points) 

Average ......................................................... ¥35 ¥35 ¥29 ¥23 ¥28 ¥42 ¥32 

Single Prevailing—Union .............................. 9 7 2 5 3 36 9 

Single Prevailing—Non-Union ....................... 26 28 27 18 25 5 23 

Current Fringe Benefit Rate 

Average ......................................................... 23% 27% 12% 13% 9% 48% 22% 

Single Prevailing—Union .............................. 14% 41% 23% 39% 4% 44% 25% 

Single Prevailing—Non-Union ....................... 4% 5% 3% 2% 2% 0% 3% 

No fringes ...................................................... 59% 27% 62% 46% 85% 8% 50% 

Proposed ‘‘Three-Step Process’’ Fringe Benefit Rate a

Average ......................................................... 13% 13% 9% 6% 5% 13% 10% 

Single Prevailing—Union .............................. 21% 47% 25% 46% 7% 80% 34% 

Single Prevailing—Non-Union ....................... 9% 13% 4% 2% 3% 7% 7% 

No fringes ...................................................... 57% 27% 62% 46% 85% 0% 48% 

Change for Fringe Benefit Rate (Percentage Points) 

Average ......................................................... ¥11 ¥14 ¥3 ¥7 ¥4 ¥35 ¥11 

Single Prevailing—Union .............................. 7 6 2 7 3 36 9 

Single Prevailing—Non-Union ....................... 6 8 1 0 1 7 4 

No fringes ...................................................... ¥2 0 0 0 0 ¥8 ¥2 

a Using a threshold of 30 percent of employees’ wage or fringe benefit rates being identical. 

Table 7 summarizes the difference in 

calculated prevailing wage rates using 

the proposed three-step process 

compared to the current process. The 

results highlighted in Table 7 show both 

average changes across all observations 

and average changes when limited to 

those classification-county observations 

where rates are different (about 32 

percent of all observations in the 

sample). Notably, all classificationcounties are weighted equally in the 

calculations. On average: 

• Across all observations, the average 

hourly rate increases by only one cent. 

Across affected classification-counties, 

the calculated hourly rate increases by 

4 cents on average. However, there is 

significant variation. The calculated 

hourly rate may increase by as much as 

$7.80 or decrease by as much as $5.78. 

• Across all observations, the average 

hourly fringe benefit rate increases by 

19 cents. Across affected classificationcounties, the calculated hourly fringe 

benefit rate increases by $1.42 on 

average (with a range from -$6.17 to 

$11.16). 

Based on this demonstration of the 

impact of changing from the current to 

the proposed definition of ‘‘prevailing,’’ 

some published wage rates and fringe 

benefit rates may increase and others 

may decrease. In the sample considered, 

wage rates changed very little on 

average but fringe benefit rates 

increased on average. As discussed 

above, the Department believes that 

these results need to be interpreted with 


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156At the time of the analysis, ECI was only 

available for the first two quarters of 2021. Thus, 

the wage and fringe benefit rates were updated to 

values representative of the first half of 2021. 

157 In each type of construction covered by the 

Davis-Bacon and Related Acts, some classifications 

are called ‘‘key’’ because most projects require these 

workers. Building construction currently has 16 key 

classifications, residential construction has 12 key 

classifications and heavy and highway construction 

each have the same eight key classifications. A line 

reflects a wage rate (or fringe benefit rate) for a key 

classification by construction type in a specific 

geographic area. For example, a line could reflect 

a plumber in building construction in Fulton 

County, GA. 

158The 54 wage rates greater than $100 were day 

or shift rates. The remaining 12,489 rates excluded 

were less than $7.25 prior to July 24, 2009, but were 

published from surveys conducted before the 

establishment of DOL’s Automated Survey Data 

System (ASDS) in 2002. The Department no longer 

has records of the original published wage rates in 

these cases. 

159Available at: https://www.bls.gov/ect/. 

160Continuous Occupational and Industry Series, 

Table 5. https://www.bls.gov/web/eci/ecicontinuous-dollar.txt. 

161The hourly wage rate increase would only 

occur when the next contract goes into effect and 

a new WD with an updated wage rate is 

incorporated into the contract. 

care and cannot be extrapolated to 

definitively quantify the overall impact 

of the 30-percent rule. Instead, these 

results should be viewed as an 

informative illustration of the potential 

direction and magnitude of transfers 

that will be attributed to this proposed 

provision. 

TABLE 7—CHANGE IN RATES ATTRIBUTABLE TO CHANGE IN DEFINITION OF ‘‘PREVAILING’’ 

Laborers Plumbers Roofers Bricklayers Cement 

masons Electricians Total 

Hourly Rate 

Total .............................................................. 949 504 545 379 360 360 3,097 

Number changed ........................................... 330 175 160 89 101 150 1,005 

Percent changed ........................................... 35% 35% 29% 23% 28% 42% 32% 

Average (non-zero) ....................................... $0.37 $1.10 ¥$1.06 $0.44 ¥$1.35 $0.94 $0.04 

Average (all) .................................................. $0.13 $0.38 ¥$0.31 $0.10 ¥$0.38 $0.39 $0.01 

Maximum ....................................................... $7.80 $7.07 $4.40 $1.02 $2.54 $4.14 $7.80 

Minimum ........................................................ ¥$3.93 ¥$4.23 ¥$2.51 ¥$0.95 ¥$5.78 ¥$4.74 ¥$5.78 

Fringe Benefit Rate 

Total .............................................................. 949 504 545 379 360 360 3,097 

Number changed ........................................... 137 69 17 26 14 184 447 

Percent changed ........................................... 14% 14% 3% 7% 4% 51% 14% 

Average (non-zero) ....................................... $2.10 $2.14 ¥$1.67 $1.21 $0.74 $2.11 $1.42 

Average (all) .................................................. $0.30 $0.29 ¥$0.05 $0.08 $0.03 $1.08 $0.19 

Max ................................................................ $9.42 $11.16 $1.42 $2.19 $6.00 $4.61 $11.16 

Min ................................................................. ¥$4.82 ¥$1.35 ¥$4.61 ¥$0.17 ¥$6.17 ¥$0.86 ¥$6.17 

2. Adjusting Out-of-Date Prevailing 

Wage and Fringe Benefit Rates 

Updating old Davis-Bacon prevailing 

wage and fringe benefit rates will 

increase the minimum required hourly 

compensation required to be paid to 

workers on Davis-Bacon projects. This 

would result in transfers of income to 

workers on Davis-Bacon projects who 

are currently being paid only the 

required minimum hourly rate. Because 

the Federal Government generally pays 

for increases to the prevailing wage 

through higher contract bids, an 

increase in the prevailing wage will 

transfer income from the Federal 

Government to the worker. This transfer 

will be reflected in increased costs paid 

by the Federal Government for 

construction. 

However, to estimate a transfer 

estimate, many assumptions need to be 

made with little or no supporting 

evidence. For example, the Department 

would need to determine if workers 

really are being paid the prevailing wage 

rate; some published rates are so 

outdated that it is highly likely effective 

labor market rates exceed the published 

rates, and the published prevailing wage 

rates are functionally irrelevant. In 

addition, the Department would need to 

predict which Davis-Bacon projects 

would occur each year, in which 

counties these projects will occur, and 

the number of hours of work required 

from each class of laborer and 

mechanic. Because of many 

uncertainties, the Department instead 

characterizes the number and size of the 

changes in published Davis-Bacon 

hourly rates and fringe benefits rather 

than formally estimating the income 

change to those potentially affected by 

the proposal to update rates. 

To provide an illustrative analysis, 

the Department used the entire set of 

wage and fringe benefit rates on Wage 

Determinations (WDs) as of May 2019 to 

demonstrate the potential changes in 

Davis-Bacon wage and fringe benefit 

rates resulting from updating old rates 

to 2021 values using the Bureau of 

Labor Statistics’ (BLS) Employment Cost 

Index (ECI).156 For this demonstration, 

the Department considered the impact 

of updating rates for key classification 

wage and fringe benefit rates published 

prior to 2019 that were based on 

weighted averages, which comprises 

172,088 wage and fringe benefit rates 

lines in 3,997 WDs.157 The Department 

has focused on wage and fringe benefit 

rates prior to 2019 because these are the 

universe of key classification rates that 

may be more than 3 years old by the 

time a final rule is issued, and the 

proposal calls for updating noncollectively-bargained wage rates that 

are more than 3 years old. 

After dropping hourly wages greater 

than $100 and wage rates that were less 

than $7.25 but were updated to $7.25, 

159,545 wage rates were updated for 

this analysis.158 To update these wage 

rates, the Department used the BLS’ ECI, 

which measures the change over time in 

the cost of labor total compensation.159

The Department believes that the ECI for 

private industry workers, total 

compensation, ‘‘construction, and 

extraction, farming, fishing, and 

forestry’’ occupations, not seasonally 

adjusted is the most appropriate index. 

However, the index for this group is 

only available starting in 2001. Thus, for 

updating wages and fringe benefits from 

1979 through 2000, the Department 

determined the ECI for private industry 

workers in the goods-producing 

industries was the most appropriate 

series to use that was available back to 

1979.160

To consider potential transfers to 

workers due to changes in wages, the 

full increase in the hourly rate would 

only occur if workers on DBRA projects 

are currently paid the original published 

rates.161 However, due to market 

conditions in some areas, workers may 

be receiving more than the published 


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162Because the May 2021 OEWS data are not yet 

available, the Department used the ECI for private 

industry workers, wages and salaries, 

‘‘construction, and extraction, farming, fishing, and 

forestry’’ occupations, not seasonally adjusted, 

applied to the May 2020 OEWS estimates to 

approximate the median wage rates for May 2021. 

May 2020, Sectors 21, 22, & 23: Mining, Utilities, 

and Construction. https://www.bls.gov/oes/ 

special.requests/oes_research_2020_sec_21-22- 

23.xlsx. 

163The Department used OEWS data for certain 

occupations matching key classifications in the 

construction industry by State. 

164WD IA20190002. 

165The Department also ran an analysis using the 

minimum wage of $15.00 as proposed by Executive 

Order 14026, ‘‘Increasing the Minimum Wage for 

Federal Contractors.’’ The results were similar. 

rate. While completely comparable data 

on wages paid to workers on DBRA 

projects in specific classifications and 

counties are not readily available and 

usable for this analysis, the BLS’s 

Occupational Employment and Wage 

Statistics (OEWS) data provide a general 

estimate of wages paid to certain 

categories of workers performing 

construction and construction-related 

duties. Although the OEWS data can be 

informative for this illustrative analysis, 

it is not a representative data set of 

professional construction workers 

performing work on DBRA projects. To 

estimate the approximate median 2021 

wage rates, the Department used the 

median hourly wage rate for each key 

classification in the construction 

industry in the State 2020 OEWS data, 

then approximated a 2021 value using 

ECI.162

To provide an example of transfers, 

the Department compared the ECIupdated Davis-Bacon wage rates to the 

applicable median hourly rate in the 

OEWS data.163 Using the OEWS as a 

general measure of the market 

conditions for construction worker 

wages in a given State, the Department 

assumed that an updated Davis-Bacon 

wage rate below the median OEWS rates 

would likely not lead to any income 

transfers to construction workers 

because most workers are likely already 

paid more than the updated DavisBacon rate. After removing the 99,111 

updated Davis-Bacon wage rates that 

were less than the OEWS median, there 

remained 60,434 updated Davis-Bacon 

wage rates that may result in transfers 

to workers. However, the Department 

notes that some of the updated DavisBacon rates may be lower because they 

are a wage rate for a rural county, and 

the OEWS data represents the statewide 

median. 

Further investigating the ECI-updated 

Davis-Bacon wage rates that were 

substantially above the OEWS median 

wage rate, the Department found that 

24,044 of the originally published 

Davis-Bacon wage rates were already 

higher than the OEWS median. For at 

least some of these wage rates, the 

comparison to the OEWS median may 

not be appropriate because such DavisBacon wage rates are for work in 

specialty construction. For example, 

most of the prevailing wage rates 

published specifically for a 2014 WD for 

Iowa Heavy Construction River Work 

exceed the 2021 OEWS median rates for 

the same classifications in Iowa.164 This 

may be an indication that comparing 

Davis-Bacon rates for this type of 

construction to a more general measure 

of wages may not be appropriate 

because workers are generally paid more 

for this type of specialty construction 

than for more other types of 

construction work measured by the 

OEWS data. 

Therefore, to measure possible 

transfers per hour to workers on DavisBacon projects due to the updating of 

wage rates, the Department began by 

taking the lesser of: 

• The difference between the updated 

wage rate and the OEWS median wage 

rate. 

• The difference between the updated 

and originally published wage rates. 

The second difference accounts for 

the 24,044 Davis-Bacon wage rates that 

were higher than the 2021 OEWS 

median rate even before they were 

updated because otherwise the 

Department would overestimate the 

potential hourly wage transfer. 

The Department also examined an 

additional adjustment for DBA wage 

rates because they are also subject to 

Executive Order 13658: Establishing a 

Minimum Wage for Contractors, which 

sets the minimum wage paid to workers 

on Federal contracts at $11.25 in 

2022.165 Thus, the Department analyzed 

an additional restriction that the 

maximum possible hourly transfer to 

workers on Davis-Bacon projects cannot 

exceed the difference between the 

updated wage rate and $11.25. 

However, the added restriction has no 

impact on estimated transfers because 

any updated wage rates that were less 

than $11.25 were also less than the 

OEWS median wage rate. Thus, the 

maximum possible hourly transfers 

attributable to updated Davis-Bacon 

wage rates are identical for construction 

projects covered by the Davis-Bacon Act 

and by the Related Acts. 

Table 8 provides the summary 

statistics of the per hour transfers to 

workers that may occur due to updating 

old Davis-Bacon wage rates. Among the 

wage rates considered in this 

demonstration, there are 60,434 wage 

rates updates that may result in transfers 

to workers. On average, the maximum 

hourly transfer is $3.92. 

TABLE 8—DISTRIBUTION OF POTENTIAL PER-HOUR TRANSFERS DUE TO UPDATED RATES

Coverage Number of 

rates Mean Median Standard deviation 

Wages 

Davis-Bacon Related Acts ............................................................................... 60,434 $3.92 $3.11 $3.92

Davis-Bacon Act .............................................................................................. 60,434 3.92 3.11 3.92 

Fringe Benefits 

Davis-Bacon and Related Acts ........................................................................ 75,495 1.43 1.02 1.58 

Total Compensation 

Davis-Bacon and Related Acts ........................................................................ 94,547 3.65 2.13 4.62 

Of the 172,088 pre-2019 SU key 

classification wage and fringe benefit 

rates, 75,495 were non-zero, and thus 

would be updated, possibly resulting in 

some transfers to workers (Table 8). On 


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166The average increase in total compensation is 

less than the average wage increase because more 

wage and fringe benefit lines are included for total 

compensation. 

167Thompson, J. and J. Chapman. (2006). ‘‘The 

Economic Impact of Local Living Wages,’’ 

Economic Policy Institute, Briefing Paper #170, 

2006. 

168 Delaney, J. (2018). The Effect of Competition 

on Bid Quality and Final Results on State DOT 

Projects. https://www.proquest.com/openview/ 

33655a0e4c7b8a6d25d30775d350b8ad/1?pqorigsite=gscholar&cbl=18750. 

169Akerlof, G.A. (1982). Labor Contracts as Partial 

Gift Exchange. The Quarterly Journal of Economics, 

97(4), 543–569. 

average, these non-zero fringe benefits 

would increase by $1.43 per hour. 

Adding the required Davis-Bacon 

wage and fringe benefit rates together 

measures the required total 

compensation rate on DBRA projects. 

Due to updating old rates, 94,547 DavisBacon total compensation hourly rates 

would increase by $3.65 on average.166

The Department conducted these two 

demonstrations to provide an indication 

of the possible changes to Davis-Bacon 

wage rates and fringe benefit rates 

attributable to the proposed provision 

revising the definition of ‘‘prevailing,’’ 

and the provision to update out-of-date 

SU rates using the ECI (only one of 

which would affect a locationoccupation pair at a particular time). 

Both provisions may lead to higher 

hourly payments, while the former also 

has the potential to lead to lower hourly 

payments. 

However, because accurate data to 

measure the current county-level labor 

conditions for specific construction 

classifications are not available, it is 

unclear if an increase or decrease in 

Davis-Bacon minimum required rates 

will impact what workers earn on DBRA 

projects. Furthermore, even if some of 

these rate changes do lead to different 

rates paid to workers on DBRA projects, 

data are not available to estimate how 

large transfers might be. To do so would 

require detailed information on what 

federally funded construction contracts 

will be issued, the types of projects 

funded, where the projects will occur 

(specific county or counties), the value 

of the projects, and the labor mix 

needed to complete the project. Due to 

these many uncertainties in calculating 

a transfer estimate, the Department 

instead tried to characterize what 

changes in rates might occur as a result 

of the rulemaking. 

E. Cost Savings 

This proposed rule could lead to cost 

savings for both contractors and the 

Federal Government, because the 

clarifications made in the rule would 

reduce ambiguity and increase 

efficiency, which could reduce the 

amount of time necessary to comply 

with the rule. For example, as discussed 

in section V.C.3, the proposal to 

expressly authorize WHD to list 

classifications and corresponding wage 

and fringe benefit rates on wage 

determinations even when WHD has 

received insufficient data through its 

wage survey process will increase 

certainty and reduce administrative 

burden for contracting entities. It would 

reduce the number of compliance 

requests needed, which could save time 

for the contractors, contracting agencies, 

and the Department. Additionally, the 

proposal which permits the 

Administrator to adopt prevailing wage 

rates set by State and local governments 

could result in cost savings for the 

Department, because it avoids WHD 

duplicating wage survey work that 

states and localities are already doing. It 

could also result in cost savings in the 

form of time savings for contractors, as 

they will only have one wage 

determination that they will have to 

reference. 

Additionally, the Department is 

providing clarifications throughout the 

rule, which will make clear which 

contract workers are covered by DBRA. 

For example, the Department is 

clarifying provisions related to the site 

of work, demolition and removal 

workers, and truck drivers and their 

assistants, among others. These 

clarifications will make it clear to both 

contractors and contract workers who is 

covered, and therefore could help 

reduce legal disputes between the two, 

resulting in cost savings. 

Because the Department does not 

have information on how much 

additional time contractors and the 

Federal Government currently spend 

complying with this rule due to lack of 

clarity, these cost savings are discussed 

qualitatively. However, the Department 

welcomes any comments and data that 

could inform a quantitative analysis of 

these cost savings. 

F. Benefits 

Among the multiple proposals 

discussed above, the Department 

recognizes that the proposal to update 

the definition of prevailing wage using 

the ‘‘30 percent rule’’ could have 

various impacts on wage rates. The 

effect of this proposal on actual wages 

paid is uncertain for the reasons 

discussed in Section V.D.1. However, 

the Department’s proposal to update 

out-of-date wage rates using the ECI 

would result in higher prevailing wage 

rates due to the increases in employer 

costs over time. Any DBRA-covered 

workers that were not already being 

paid above these higher wage rates 

would receive a raise when these 

updated rates were implemented. These 

higher wages could lead to benefits such 

as improved government services, 

increased productivity, and reduced 

turnover, which are all discussed here 

qualitatively. The magnitude of these 

wage increases could influence the 

magnitude of these benefits. 

The Department notes that the 

literature cited in this section 

sometimes does not directly consider 

changes in the DBRA prevailing wages. 

Additionally, much of the literature is 

based on voluntary changes made by 

firms. However, the Department has 

presented the information here because 

the general findings may still be 

applicable in this context. The 

Department welcomes comments and 

data on the benefits of this proposed 

rulemaking. 

1. Improved Government Services 

For workers who are paid higher wage 

rates as a result of this proposed 

rulemaking, the Department expects that 

the quality of construction could 

improve. Higher wages can be 

associated with a higher number of 

bidders for Government contracts, 

which can be expected to generate 

greater competition and an improved 

pool of contractors. Multiple studies 

have shown that the bidding for 

municipal contracts remained 

competitive or even improved when 

living wage ordinances were 

implemented (Thompson and Chapman, 

2006).167 In a study on the impact of bid 

competition on final outcomes of State 

Department of Transportation (DOT) 

construction projects, Delaney (2018) 

demonstrated that each additional 

bidder reduces final project cost 

overruns by 2.2 percent and increases 

the likelihood of achieving a highquality bid by 4.9 times.168

2. Increased Productivity 

For workers whose wages increase as 

a result of the Department’s proposal to 

update out-of-date wage rates, these 

increases could result in increased 

productivity. Increased productivity 

could occur through numerous 

channels, such as employee morale, 

level of effort, and reduced absenteeism. 

A strand of economic research, 

commonly referred to as ‘‘efficiency 

wage’’ theory, considers how an 

increase in compensation may be met 

with greater productivity.169 Efficiency 

wages may elicit greater effort on the 


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170Another model of efficiency wages, which is 

less applicable here, is the adverse selection model 

in which higher wages raise the quality of the pool 

of applicants. 

171Allen, S.G. (1984). Unionized Construction 

Workers are More Productive. The Quarterly 

Journal of Economics, 251–174. 

172The Construction Labor Research Council 

(2004). The Impact of Wages on Highway 

Construction Costs. http://niabuild.org/ 

WageStudybooklet.pdf. 

173 Vedder, R. (1999). Michigan’s Prevailing Wage 

Law and Its Effects on Government Spending and 

Construction Employment. Midland, Michigan: 

Mackinac Center for Public Policy. 

174Allen, S.G. (1983). How Much Does 

Absenteeism Cost? Journal of Human Resources, 

18(3), 379–393. https://www.jstor.org/stable/ 

145207?seq=1. 

175Zhang, W., Sun, H., Woodcock, S., & Anis, A. 

(2013). Valuing Productivity Loss Due to 

Absenteeism: Firm-level Evidence from a Canadian 

Linked Employer-Employee Data. Health 

Economics Review, 7(3). https://

healtheconomicsreview.biomedcentral.com/ 

articles/10.1186/s13561-016-0138-y. 

176Allen, S.G. (1983). How Much Does 

Absenteeism Cost? Journal of Human Resources, 

18(3), 379–393. https://www.jstor.org/stable/ 

145207?seq=1. 

177Hanna, A., Menches, C., Sullivan, K., & 

Sargent, J. (2005) Factors Affecting Absenteeism in 

Electrical Construction. Journal of Construction 

Engineering and Management 131(11). https://

ascelibrary.org/doi/abs/10.1061/(ASCE)0733- 

9364(2005)131:11(1212). 

178Fairris, D., Runstein, D., Briones, C., & 

Goodheart, J. (2005). Examining the Evidence: The 

Impact of the Los Angeles Living Wage Ordinance 

on Workers and Businesses. LAANE. https://

laane.org/downloads/Examinig_the_Evidence.pdf. 

179Pfeifer, C. (2010). Impact of Wages and Job 

Levels on Worker Absenteeism. International 

Journal of Manpower 31(1), 59–72. https://doi.org/ 

10.1108/01437721011031694. 

180 Dionne, G., & Dostie, B. (2007). New Evidence 

on the Determinants of Absenteeism Using Linked 

Employer-Employee Data. Industrial and Labor 

Relations Review 61(1), 108–120. https://

journals.sagepub.com/doi/abs/10.1177/ 

001979390706100106. 

181 Dube, A., Lester, T.W., & Reich, M. (2011). Do 

Frictions Matter in the Labor Market? Accessions, 

Separations, and Minimum Wage Effects. 

(Discussion Paper No. 5811). IZA. https://

www.iza.org/publications/dp/5811/do-frictionsmatter-in-the-labor-market-accessions-separationsand-minimum-wage-effects. 

Liu, S., Hyclak, T. J., & Regmi, K. (2015). Impact 

of the Minimum Wage on Youth Labor Markets. 

Labour 29(4). doi: 10.1111/labr.12071. 

Jardim, E., Long, M.C., Plotnick, R., van Inwegen, 

E., Vigdor, J., & Wething, H. (2018, October). 

Minimum Wage Increases and Individual 

Employment Trajectories (Working paper No. 

25182). NBER. doi:10.3386/w25182. 

182Boushey, H. and Glynn, S. (2012). There are 

Significant Business Costs to Replacing Employees. 

Center for American Progress. Available at: http:// 

www.americanprogress.org/wp-content/uploads/ 

2012/11/CostofTurnover.pdf. 

183Fairris, D., Runstein, D., Briones, C., & 

Goodheart, J. (2005). Examining the Evidence: The 

Impact of the Los Angeles Living Wage Ordinance 

on Workers and Businesses. LAANE. https://

laane.org/downloads/Examinig_the_Evidence.pdf. 

part of workers, making them more 

effective on the job.170

Allen (1984) estimates the ratio of the 

marginal product of union and nonunion labor.171 He finds that union 

workers are 17 to 22 percent more 

productive than non-union members. 

Although it is unclear whether this 

entire productivity difference is 

attributable to higher wages, it is likely 

a large contributing factor. The 

Construction Labor Research Council 

(2004) compared the costs to build a 

mile of highway in higher wage and 

lower wage states using data reported to 

the Federal Highway Administration 

from 1994 to 2002.172 They found that 

in higher wage states, 32 percent fewer 

labor hours are needed to complete a 

mile of highway than in lower wage 

states, despite hourly wage rates being 

69 percent higher in those states. While 

this increased worker productivity 

could be due in part to other factors 

such as greater worker experience or 

more investment in capital equipment 

in higher wage states, the higher wages 

likely contribute. 

Conversely, Vedder (1999) compared 

output per worker across states with and 

without prevailing wage laws.173 Data 

on construction workers is from the 

Department of Labor and data on 

construction contracts is from the 

Department of Commerce. A worker in 

a prevailing wage law State produced 

$63,116 of value in 1997 while a worker 

from a non-prevailing wage law State 

produced $65,754. Based on this simple 

comparison, workers are more 

productive without prevailing wage 

laws. However, this is a somewhat basic 

comparison in that it does not control 

for other differences between states that 

may influence productivity (for 

example, the amount of capital used or 

other State regulations). 

Studies on absenteeism have 

demonstrated that there is a negative 

effect on firm productivity as absentee 

rates increase.174 Zhang et al., in their 

study of linked employer-employee data 

in Canada, found that a 1 percent 

decline in the attendance rate reduces 

productivity by 0.44 percent.175 Allen 

(1983) similarly noted that a 10- 

percentage point increase in 

absenteeism corresponds to a decrease 

of 1.6 percent in productivity.176 Hanna 

et al. (2005) find that while absenteeism 

rates of between 0 and 5 percent among 

contractors on electrical construction 

projects lead to no loss of productivity, 

absenteeism rates of between 6 and 10 

percent can spark a 24.4 percent drop in 

productivity.177

Fairris et al. (2005) demonstrated that 

as a worker’s wage increases there is a 

reduction in unscheduled 

absenteeism.178 They attribute this 

effect to workers standing to lose more 

if forced to look for new employment 

and an increase in pay paralleling an 

increase in access to paid time off. 

Pfeifer’s (2010) study of German 

companies provides similar results, 

indicating a reduction in absenteeism if 

workers experience an overall increase 

in pay.179 Conversely, Dionne and 

Dostie (2007) attribute a decrease in 

absenteeism to mechanisms other than 

an increase in worker pay, specifically 

scheduling that provides both the 

option to work-at-home and for fewer 

compressed work weeks.180 However, 

the relevance of such policies in the 

context of construction is unclear. The 

Department believes both the 

connection between prevailing wages 

and absenteeism, and the connection 

between absenteeism and productivity 

are well enough established that this is 

a feasible benefit of the proposed rule. 

3. Reduced Turnover 

Little evidence is available on the 

impact of prevailing wage laws and 

turnover, but an increase in the 

minimum wage has been shown to 

decrease both turnover rates and the rate 

of worker separation (Dube, Lester and 

Reich, 2011; Liu, Hyclak and Regmi, 

2015; Jardim et al., 2018).181 This 

decrease in turnover and worker 

separation can lead to an increase in the 

profits of firms, as the hiring process 

can be both expensive and time 

consuming. A review of 27 case studies 

found that the median cost of replacing 

an employee was 21 percent of the 

employee’s annual salary.182 Fairris et 

al. (2005) 183 found the cost reduction 

due to lower turnover rates ranges from 

$137 to $638 for each worker. Although 

the impacts cited here are not limited to 

government construction contracting, 

because data specific to government 

contracting and turnover are not 

available, the Department believes that 

a reduction in turnover could be 

observed among those workers on DBRA 

contracts whose wages increase 

following this proposed rule. The 

potential reduction in turnover is a 

function of several variables: The 

current wage, the change in the wage 

rate, hours worked on covered contracts, 

and the turnover rate. Therefore, the 

Department has not quantified the 

impacts of potential reduction in 

reduction in turnover. 

VI. Initial Regulatory Flexibility Act 

(IRFA) Analysis 

The Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 601 et seq., as amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996, 

Public Law 104–121 (March 29, 1996), 

requires Federal agencies engaged in 

rulemaking to consider the impact of 


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184The DBA and the Related Acts apply to both 

prime contracts and subcontracts of any tier 

thereunder. In this NPRM, as in the regulations 

themselves, where the terms ‘‘contracts’’ or 

‘‘contractors’’ are used, they are intended to include 

reference both prime contracts and contractors and 

subcontracts and subcontractors of any tier. 

185The description of this variable in the 

USAspending.gov Data Dictionary is: ‘‘The 

Contracting Officer’s determination of whether the 

selected contractor meets the small business size 

standard for award to a small business for the 

NAICS code that is applicable to the contract.’’ The 

Data Dictionary is available at: https://

www.usaspending.gov/data-dictionary. 

186The description of this variable in the 

USAspending.gov Data Dictionary is: ‘‘Comma 

separated list representing sub-contractor business 

types pulled from Federal Procurement Data 

System—Next Generation (FPDS–NG) or the System 

for Award Management (SAM).’’ 

their proposals on small entities, 

consider alternatives to minimize that 

impact, and solicit public comment on 

their analyses. The RFA requires the 

assessment of the impact of a regulation 

on a wide range of small entities, 

including small businesses, not-for 

profit organizations, and small 

governmental jurisdictions. Agencies 

must perform a review to determine 

whether a proposed or final rule would 

have a significant economic impact on 

a substantial number of small entities. 5 

U.S.C. 603, 604. 

A. Why the Department Is Considering 

Action 

In order to provide greater clarity and 

enhance their usefulness in the modern 

economy, the Department proposes to 

update and modernize the regulations at 

29 CFR parts 1, 3, and 5, which 

implement the Davis-Bacon Act and the 

Davis-Bacon Related Acts (collectively, 

the DBRA). The Department has not 

undertaken a comprehensive revision of 

the DBRA regulations since 1982. Since 

that time, Congress has expanded the 

reach of the DBRA regulations 

significantly, adding numerous new 

Related Act statutes to which they 

apply. The Davis-Bacon Act (DBA) and 

now 71 active Related Acts collectively 

apply to an estimated tens of billions of 

dollars in Federal and federally assisted 

construction spending per year and 

provide minimum wage rates for 

hundreds of thousands of U.S. 

construction workers. The Department 

expects these numbers to continue to 

grow as Congress seeks to address the 

significant infrastructure needs in the 

country, including, in particular, energy 

and transportation infrastructure 

necessary to address climate change. 

These regulations will provide 

additional clarity that will be helpful 

given the increased number of 

construction projects subject to DavisBacon requirements, due to the 

substantial increases in federally funded 

construction provided for in legislation 

such as the Infrastructure Investment 

and Jobs Act. 

In addition to expanding coverage of 

the prevailing wage rate requirements of 

the DBA, the Federal contracting system 

itself has undergone significant changes 

since 1982. Federal agencies have 

increased spending through the use of 

interagency Federal schedules. 

Contractors have increased their use of 

single-purpose entities such as joint 

ventures and teaming agreements. Offsite construction of significant 

components of public buildings and 

works has also increased. The 

regulations need to be updated to assure 

their continued effectiveness in the face 

of changes such as these. 

B. Objectives of and Legal Basis for the 

Proposed Rule 

In this NPRM, the Department seeks 

to address a number of outstanding 

challenges in the program while also 

providing greater clarity in the DBRA 

regulations and enhancing their 

usefulness in the modern economy. 

Specifically, the Department proposes to 

return to the definition of ‘‘prevailing 

wage’’ that was used from 1935 to 1983 

to address the overuse of average rates 

and ensure that prevailing wages reflect 

actual wages paid to workers in the 

local community. The Department also 

proposes to periodically update noncollectively bargained prevailing wage 

rates to address out-of-date wage rates. 

The Department proposes to give WHD 

broader authority to adopt State or local 

wage determinations as the Federal 

prevailing wage where certain specified 

criteria are satisfied, to issue 

supplemental rates for key 

classifications where there is 

insufficient survey data, to modernize 

the scope of work to include energy 

infrastructure and the site of work to 

include prefabricated buildings, to 

ensure that DBRA requirements protect 

workers by operation of law, and to 

strengthen enforcement including 

debarment and anti-retaliation. See 

Section III.B. for a full discussion of the 

Department’s proposed changes to these 

regulations. 

Congress has delegated authority to 

the Department to issue prevailing wage 

determinations and prescribe rules and 

regulations for contractors and 

subcontractors on DBRA-covered 

construction projects.184 See 40 U.S.C. 

3142, 3145. It has also directed the 

Department, through Reorganization 

Plan No. 14 of 1950, to ‘‘prescribe 

appropriate standards, regulations and 

procedures’’ to be observed by Federal 

agencies responsible for the 

administration of the Davis-Bacon and 

Related Acts. 5 U.S.C. app. 1, effective 

May 24, 1950, 15 FR 3176, 64 Stat. 1267. 

These regulations, which have been 

updated and revised periodically over 

time, are primarily located in parts 1, 3, 

and 5 of title 29 of the Code of Federal 

Regulations. 

C. Estimating the Number of Small 

Businesses Affected by the Rulemaking 

As discussed in section V.B., the 

Department identified a range of firms 

potentially affected by this rulemaking. 

This includes both firms impacted by 

the Davis-Bacon Act and firms impacted 

by the Related Acts. The more narrowly 

defined population includes firms 

actively holding Davis-Bacon contracts 

and firms affected by the Related Acts. 

The broader population includes those 

bidding on Davis-Bacon and Related 

Acts contracts but without active 

contracts, or those considering bidding 

in the future. As described in section 

V.B., the total number of potentially 

affected firms ranges from 154,500 to 

192,400. This includes firms that pay at 

or above the new wage determination 

rates and thus will not be substantially 

affected. The Department does not have 

data to identify the number of firms that 

will experience changes in payroll costs. 

To identify the number of small firms, 

the Department began with the total 

population of firms and identified some 

of these firms as small based on several 

methods. 

• For prime contractors in 

USASpending, the Department used the 

variable ‘‘Contracting Officer’s 

Determination of Business Size.’’ 185

• For subcontractors from 

USASpending, the Department 

identified those with ‘‘small’’ or ‘‘SBA’’ 

in the ‘‘Subawardee Business Types’’ 

variable.186

• For SAM data, the Department used 

the small business determination in the 

data, in variable ‘‘NAICS Code String.’’ 

This is flagged separately for each 

NAICS reported for the firm; therefore, 

the Department classified a company as 

a small business if SAM identified it as 

a small business in any 6-digit NAICS 

beginning with 23. 

This results in an estimated number of 

potentially affected small businesses 

ranging from 103,600 to 135,200. 


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187 If subcontractors are more likely to be small 

businesses than prime contractors, then this 

methodology may underestimate the number of 

workers who are employed by small businesses. 

TABLE 9—RANGE OF NUMBER OF POTENTIALLY AFFECTED SMALL FIRMS

Source Small 

Total Count (Davis-Bacon and Related Acts) 

Narrow definition ............................................................................................................................................................................ 103,600 

Broad definition .............................................................................................................................................................................. 135,200 

DBA (Narrow Definition) 

Total ............................................................................................................................................................................................... 26,700 

Prime contractors from USASpending ................................................................................................................................... 11,200 

Subcontractors from USASpending a ..................................................................................................................................... 15,500 

DBA (Broad Definition) 

Total ............................................................................................................................................................................................... 58,300 

SAM ........................................................................................................................................................................................ 42,800 

Subcontractors from USASpending a ..................................................................................................................................... 15,500 

Related Acts 

Total ............................................................................................................................................................................................... 77,000 

a Determination based on inclusion of ‘‘small’’ or ‘‘SBA’’ in the business types. 

The Department estimated in section 

V.B. that 1.2 million employees are 

potentially affected by the rulemaking. 

That methodology does not include a 

variation to identify only workers 

employed by small firms. The 

Department therefore assumed that the 

share of contracting expenditures 

attributed to small businesses is the best 

approximation of the share of 

employment in small businesses. In 

USASpending, expenditures are 

available for by firm size. For example, 

in 2019, $55.4 billion was spent on DBA 

covered contracts (see section V.B.2.) 

and of that, $19.8 billion (36 percent) 

was awarded to small business prime 

contractors.187 Data on expenditures by 

firm size are unavailable for the Related 

Acts (Table 10). Therefore, the 

Department assumed the same 

percentage applies to such expenditures 

as for Davis-Bacon contracts. In total, an 

estimated 424,800 workers are 

employed by potentially affected small 

businesses. 

TABLE 10—NUMBER OF POTENTIALLY AFFECTED WORKERS IN SMALL COVERED CONTRACTING FIRMS

Total workers 

(thousands) 

Percent of 

expenditures in 

small contracting 

firms a

Workers in small 

businesses 

(thousands) 

DBA, excl. territories .................................................................................................. 297.9 35.7% 106.4 

DBA, territories .......................................................................................................... 6.1 38.2% 2.3 

Related Acts b ............................................................................................................ 883.9 35.8% 316.0 

Total .................................................................................................................... 1,188.0 .............................. 424.8 

aSource: USASpending.gov. Percentage of contracting expenditures for covered contracts in small businesses in 2019. bBecause data on expenditures by firm size are unavailable for Related Acts. The Department assumed the same percentage applied as for 

Davis-Bacon. 

In several places in the NPRM, the 

Department is proposing to add or 

revise language to clarify existing 

policies rather than to substantively 

change them. For example, the 

Department proposes to add language to 

the definitions of ‘‘building or work’’ 

and ‘‘public building or public work’’ to 

clarify that these definitions can be met 

even when the construction activity 

involves only a portion of an overall 

building, structure, or improvement. 

Also, the Department proposes to add 

language clarifying the applicability of 

the ‘‘material supplier’’ exemption to 

coverage, the applicability of the DBRA 

to truck drivers and flaggers, and the 

extent to which demolition activities are 

covered by the DBRA. However, the 

Department acknowledges that some 

contracting agencies may not have been 

applying Davis-Bacon in accordance 

with those policies. Where this was the 

case, the clarity provided by this 

proposed rule could lead to expanded 

application of the Davis-Bacon labor 

standards, which could lead to more 

small firms being required to comply 

with Davis-Bacon labor standards. 

Additionally, the Department’s proposes 

to revise the definition of ‘‘site of the 

work’’ to further encompass certain 

construction of significant portions of a 

building or work at secondary 

worksites, which could clarify and 

strengthen the scope of coverage under 

DBA, which would also lead to more 

small firms being required to comply 

with Davis-Bacon labor standards. The 

Department does not have data to 

determine how many of these small 

firms exist and welcomes data and 

information on the extent to which 

small firms would newly be applying 


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188This includes the median base wage of $32.30 

from the May 2020 OEWS estimates plus benefits 

paid at a rate of 46 percent of the base wage, as 

estimated from the BLS’s Employer Costs for 

Employee ECEC data, and overhead costs of 17 

percent. OEWS data available at: http://

www.bls.gov/oes/current/oes131141.htm. 

Davis-Bacon and what potential 

compliance costs they could incur. 

D. Compliance Requirements of the 

Proposed Rule, Including Reporting and 

Recordkeeping 

Many of the proposals in this rule 

only affect how the prevailing wage rate 

is calculated. For these proposals there 

will be no new compliance 

requirements for small firms, as they 

will still need to pay the published 

prevailing wage. The Department is also 

proposing a number of revisions to 

existing recordkeeping requirements to 

better effectuate compliance and 

enforcement, including revisions to 

clarify the record retention period and 

add requirements to maintain worker 

telephone numbers and email addresses. 

The Department is proposing to clarify 

language used to better distinguish the 

records that contractors must make and 

maintain (regular payrolls and other 

basic records) from the payroll 

documents that contractors must submit 

weekly to contracting agencies (certified 

payrolls). The Department is also 

proposing to clarify that electronic 

signatures and certified payroll 

submission methods may be used. 

E. Calculating the Impact of the 

Proposed Rule on Small Business Firms 

The Department considered employer 

costs associated with both (a) the change 

in determining the prevailing wage 

based on a 30 percent threshold instead 

of a 50 percent threshold and (b) the 

incorporation of using the change in the 

ECI to update certain non-collectively 

bargained prevailing wage rates. The 

Department estimated both regulatory 

familiarization costs and 

implementation costs. An overview of 

these costs is explained here but 

additional details can be found in 

section V.C. Non-quantified direct 

employer costs are explained in section 

V.C.3. 

The Department acknowledges that if 

some wage rates increase due to either 

of the provisions listed above, there 

could be an increase in payroll costs for 

some small firms. Due to data 

limitations and uncertainty, the 

Department did not quantify payroll 

costs (i.e., transfers). The change in the 

definition of prevailing wage will only 

be applied to wage data received 

through future surveys, for geographic 

areas and classifications that have not 

yet been identified. Both this provision 

and the updating of out-of-date rates 

will not have any impact if firms are 

already paying at or above the new 

prevailing wage rate because of labor 

market forces. Please see section V.D. 

for a more thorough discussion of these 

potential payroll costs, including an 

illustrative example of the potential 

impact of the proposed rule on 

prevailing wage rates. 

The Department welcomes comments 

and data on whether small firms would 

incur increased payroll costs following 

this rule, and the extent to which firms 

are paying above the out-of-date 

prevailing wage rates. 

Year 1 direct employer costs for small 

businesses are estimated to total $8.7 

million. Average annualized costs 

across the first 10 years are estimated to 

be $2.6 million (using a 7 percent 

discount rate). On a per firm basis, 

direct employer costs are estimated to 

be $78.97 in Year 1. 

The proposed rule will impose direct 

costs on some covered contractors who 

will review the regulations to 

understand how the prevailing wage 

setting methodology will change. 

However, the Department believes these 

regulatory familiarization costs will be 

small because firms are not required to 

understand how the prevailing wage 

rates are set in order to comply with 

DBRA requirements, they are just 

required to pay the prevailing wage 

rates. The Department included all 

small potentially affected firms (135,200 

firms). The Department assumed that on 

average, 1 hour of a human resources 

staff member’s time will be spent 

reviewing the rulemaking. The cost of 

this time is the median loaded wage for 

a Compensation, Benefits, and Job 

Analysis Specialist of $52.65 per 

hour.188 Therefore, the Department has 

estimated regulatory familiarization 

costs to be $7.1 million ($52.65 per hour 

× 1.0 hour × 135,200 contractors) (Table 

11). The Department has included all 

regulatory familiarization costs in Year 

1. New entrants will not incur any 

additional regulatory familiarization 

costs attributable to this rule. Average 

annualized regulatory familiarization 

costs over 10 years, using a 7 percent 

discount rate, are $1.0 million. 

TABLE 11—DIRECT EMPLOYER COSTS TO SMALL BUSINESSES

[2020 dollars] 

Variable Total 

Regulatory 

familiarization 

costs 

Implementation 

costs 

Year 1 Costs: .............................. .............................. ..............................

Potentially affected firms .................................................................................... .............................. 135,200 62,574 

Hours per firm ..................................................................................................... .............................. 1 0.5 

Loaded wage rate ............................................................................................... .............................. $52.65 $52.65 

Cost ($1,000s) .................................................................................................... $8,700 $7,100 $1,600 

Years 2–10 ($1,000s): .............................. .............................. ..............................

Annual cost ......................................................................................................... $1,600 $0 $1,600 

Average Annualized Costs ($1,000s): .............................. .............................. ..............................

3% discount rate ................................................................................................. $2,400 $835 $1,600 

7% discount rate ................................................................................................. $2,600 $1,000 $1,600 

When firms update prevailing wage 

rates, they can incur costs associated 

with adjusting payrolls, adjusting 

contracts, and communicating this 

information to employees (if 

applicable). This proposed rule would 

generally affect the frequency with 

which prevailing wage rates are updated 

through the provision to update old, 

outmoded rates, and moving forward, to 

periodically update rates when that 

does not occur through the survey 

process. Currently, only a fraction of 

prevailing wages can be expected to 

change each year. Because the 


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Department intends to update older 

rates to more accurately represent wages 

and benefits being paid in the 

construction industry, and, moving 

forward, more published wage rates will 

change more frequently than in the past, 

firms may spend more time updating 

prevailing wage rates for contractual 

purposes than they have in the past, 

leading to additional implementation 

costs than there otherwise would have 

been. The Department does not believe 

that there will be additional 

implementation costs associated with 

the proposal to update the definition of 

the prevailing wage (30 percent rule). 

This proposed change would only apply 

to new surveys, for which employers 

would have already had to update wage 

rates. 

To estimate the size of the 

implementation cost associated with the 

periodic updates, the Department 

assumed that each year 39.6 percent of 

firms are already checking rates due to 

newly published surveys (section 

V.C.2.). Multiplying the remaining 60.4 

percent by the 103,600 small firms 

holding DBRA contracts results in 

62,574 firms impacted annually (Table 

11). The proposed change to update 

current non-collectively bargained rates 

will have an implementation cost to 

firms. The proposed change to update 

non-collectively bargained rates moving 

forward will result in ongoing 

implementation costs. Each time the 

rate is updated, firms will incur some 

costs to adjust payroll (if applicable) 

and communicate the new rates to 

employees. The Department assumed 

that this provision would impact all 

small firms currently holding DBRA 

contracts (62,574 firms). For the initial 

increase, the Department estimated this 

will take approximately 0.5 hours per 

year for firms to adjust their rates. As 

with previous costs, implementation 

time costs are based on a loaded hourly 

wage of $52.65. Therefore, total Year 1 

implementation costs were estimated to 

equal $1.6 million ($52.65 × 0.5 hour × 

62,574 firms). The average annualized 

implementation cost over 10 years, 

using a 7 percent discount rate, is $1.6 

million. 

To determine direct employer costs 

on a per firm basis, the Department 

considers only those firms who are fully 

affected. These are firms who seek to 

bid on DBRA contracts, and who have 

new wage rates to incorporate into their 

bids and, as needed, into their payroll 

systems. For these firms, the Year 1 

costs are estimated as one and a half 

hours of time (1 hour for regulatory 

familiarization and 0.5 hours for 

implementation) valued at $52.65 per 

hour. This totals $78.97 in Year 1 costs 

per firm. The Department welcomes 

comments on all of the cost estimates 

presented here. 

F. Relevant Federal Rules Duplicating, 

Overlapping, or Conflicting With the 

Proposed Rule 

The Department is not aware of any 

relevant Federal rules that conflict with 

this NPRM. 

G. Alternative to the Proposed Rule 

The RFA directs agencies to assess the 

impacts that various regulatory 

alternatives would have on small 

entities and to consider ways to 

minimize those impacts. Accordingly, 

the Department considered certain 

regulatory alternatives. 

For one alternative, the Department 

considered requiring all contracting 

agencies—not just Federal agencies— 

that use wage determinations under the 

DBRA to submit an annual report to the 

Department outlining proposed 

construction programs for the coming 

year. The Department concluded, 

however, that this requirement would 

be unnecessarily onerous for nonFederal contracting agencies, 

particularly as major construction 

projects such as those related to road 

and water quality infrastructure projects 

may be dependent upon approved 

funding or financial assistance from a 

Federal partner. The Department’s 

proposal to require only Federal 

agencies to submit these annual reports 

would be simpler and less burdensome 

for the regulated community as some 

Federal agencies have already been 

submitting these reports pursuant to 

AAM 144 (Dec. 27, 1985) and AAM 224 

(Jan. 17, 2017). 

Another alternative that was 

considered was the use of a different 

index instead of the Employment Cost 

Index (ECI) for updating out-of-date 

non-collectively bargained wage rates. 

The Department considered proposing 

to use the Consumer Price Index (CPI) 

but considers this data source to be a 

less appropriate index to use because 

the CPI measures movement of 

consumer prices as experienced by dayto-day living expenses, unlike the ECI, 

which measures changes in the costs of 

labor in particular. The CPI does not 

track changes in wages or benefits, nor 

does it reflect the costs of construction 

workers nationwide. 

The Department welcomes comments 

on these and other alternatives to the 

proposed rule. 

VII. Unfunded Mandates Reform Act of 

1995 

The Unfunded Mandates Reform Act 

of 1995, 2 U.S.C. 1532, requires agencies 

to prepare a written statement, which 

includes an assessment of anticipated 

costs and benefits, before proposing any 

unfunded Federal mandate that may 

result in excess of $100 million 

(adjusted annually for inflation) in 

expenditures in any one year by State, 

local, and tribal governments in the 

aggregate, or by the private sector. This 

rulemaking is not expected exceed that 

threshold. See section V. for an 

assessment of anticipated costs, 

transfers, and benefits. 

VIII. Executive Order 13132, 

Federalism 

The Department has (1) reviewed this 

proposed rule in accordance with 

Executive Order 13132 regarding 

federalism and (2) determined that it 

does not have federalism implications. 

The proposed rule would not have 

substantial direct effects on the States, 

on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. 

IX. Executive Order 13175, Indian 

Tribal Governments 

This proposed rule would not have 

tribal implications under Executive 

Order 13175 that would require a tribal 

summary impact statement. The 

proposed rule would not have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

Appendix A—Surveys Included in the 

Prevailing Wage Demonstration 

Survey year Pub date 

Surveys Included 

State Metro/rural Construction type(s) 

2018 ............................................ 12/25/2020 Utah ............................................ Metro .......................................... Heavy. 

2017 ............................................ 12/14/2018 Nevada ....................................... Both ............................................ Highway. 

2017 ............................................ 12/25/2020 New York ................................... Rural ........................................... Building. 


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Survey year Pub date 

Surveys Included 

State Metro/rural Construction type(s) 

2017 ............................................ 12/25/2020 North Dakota .............................. Both ............................................ Heavy. 

2017 ............................................ 2/7/2020 Oklahoma ................................... Metro .......................................... Residential. 

2017 ............................................ 2/7/2020 Pennsylvania .............................. East Metro .................................. Residential. 

2017 ............................................ 1/24/2020 Vermont ...................................... Both ............................................ Heavy, highway [a]. 

2016 ............................................ 12/14/2018 Connecticut ................................ Metro [b] ..................................... Building. 

2016 ............................................ 12/14/2018 New Mexico ............................... Metro .......................................... Building and heavy. 

2016 ............................................ 9/29/2017 New York ................................... 4 metro counties ........................ Building. 

2016 ............................................ 2/7/2020 North Carolina ............................ Both ............................................ Residential. 

2016 ............................................ 12/8/2017 South Carolina ........................... Metro [c] ..................................... Residential. 

2015 ............................................ 10/6/2017 Alabama ..................................... Both [d] ....................................... Building and heavy. 

2016 ............................................ 2/7/2020 Alabama ..................................... Both ............................................ Highway. 

2015 ............................................ 4/21/2017 Arkansas .................................... Both ............................................ Building and heavy. 

2015 ............................................ 9/28/2018 Minnesota ................................... Both ............................................ Building. 

2015 ............................................ 7/28/2017 Mississippi .................................. Both ............................................ Building and heavy. 

2015 ............................................ 9/29/2017 New Hampshire ......................... Both ............................................ Building and heavy. 

2014 ............................................ 12/16/2016 Florida ........................................ Metro [c] ..................................... Building. 

[a] Building component not sufficient. 

[b] Only one rural county so excluded. 

[c] Rural component of survey was not sufficient. 

[d] Excludes heavy rural which were not sufficient. 

This includes most surveys with 

published rates that began in 2015 or 

later. They include all four construction 

types, metro and rural counties, and a 

variety of geographic regions. Two 

surveys were excluded because they did 

not meet sufficiency standards (2016 

Alaska residential and 2015 Maryland 

highway). A few surveys were excluded 

due to anomalies that could not be 

reconciled. These include: 

• 2016 Kansas highway 

• 2016 Virginia highway 

Appendix B: Current DOL Wage 

Determination Protocols 

Sufficiency requirement is: For a 

classification to have sufficient 

responses there generally must be data 

on at least six employees from at least 

three contractors. Additionally, if data is 

received for either exactly six 

employees or exactly three contractors, 

then no more than 60 percent of the 

total employees can be employed by any 

one contractor. Exceptions to these 

criteria are allowed under limited 

circumstances. Examples include: 

Surveys conducted in rural counties, or 

residential and heavy surveys with 

limited construction activity, or for 

highly specialized classifications. In 

these circumstances, the rule can be 

three employees and two contractors. 

Aggregation: If the classification is not 

sufficient at the county level, data are 

aggregated to the group level, 

supergroup level, and State level (metro 

or rural), respectively. For building and 

residential construction, at each level of 

aggregation (as well as at the county 

level) WHD first attempts to calculate a 

prevailing rate using data only for 

projects not subject to Davis-Bacon labor 

standards; if such data are insufficient 

to calculate a prevailing rate, then data 

for projects subject to Davis-Bacon labor 

standards is also included. 

Majority rate: If more than 50 percent 

of employees are paid the exact same 

hourly rate, then that rate prevails. If 

not, the Department calculates a 

weighted average. If more than 50 

percent are not exactly the same, but 

100 percent of the data are union, then 

a union weighted average is calculated. 

Prevailing fringe benefits: Before a 

fringe benefit is applicable, it must 

prevail. The first step is to determine if 

more than 50 percent of the workers in 

the reported classification receive a 

fringe benefit. If more than 50 percent 

of the employees in a single 

classification are paid any fringe 

benefits, then fringe benefits prevail. If 

fringe benefits prevail in a classification 

and: 

• More than 50 percent of the 

employees receiving fringe benefits are 

paid the same total fringe benefit rate, 

then that total fringe benefit rate 

prevails. 

• more than 50 percent of the 

employees receiving benefits are not 

paid at the same total rate, then the 

average rate of fringe benefits weighted 

by the number of workers who received 

fringe benefits prevails. If more than 50 

percent are not paid the same total rate, 

but 100 percent of the data are union, 

then a union weighted average is 

calculated. 

However, if 50 percent or less of the 

employees in a single classification are 

paid a fringe benefit, then fringe benefits 

will not prevail, and a fringe benefit rate 

of $0.00 will be published for that 

classification. 

List of Subjects 

29 CFR Part 1 

Administrative practice and 

procedure, Construction industry, 

Government contracts, Government 

procurement, Law enforcement, 

Reporting and recordkeeping 

requirements, Wages. 

29 CFR Part 3 

Administrative practice and 

procedure, Construction industry, 

Government contracts, Government 

procurement, Law enforcement, 

Penalties, Reporting and recordkeeping 

requirements, Wages. 

29 CFR Part 5 

Administrative practice and 

procedure, Construction industry, 

Government contracts, Government 

procurement, Law enforcement, 

Penalties, Reporting and recordkeeping 

requirements, Wages. 

For reasons stated in the preamble, 

the Wage and Hour Division, 

Department of Labor, proposes to amend 

29 CFR subtitle A as follows: 

PART 1—PROCEDURES FOR 

PREDETERMINATION OF WAGE 

RATES 

■ 1. The authority citation for part 1 is 

revised to read as follows: 

Authority: 5 U.S.C. 301; R.S. 161, 64 Stat. 

1267; Reorganization Plan No. 14 of 1950, 5 

U.S.C. Appendix; 40 U.S.C. 3141 et seq.; 40 

U.S.C. 3145; 40 U.S.C. 3148; and Secretary of 

Labor’s Order 01–2014 (Dec. 19, 2014), 79 FR 

77527 (Dec. 24, 2014); and the laws 

referenced by 29 CFR 5.1. 

■ 2. Amend § 1.1 by revising paragraphs 

(a) and (b) to read as follows: 


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§ 1.1 Purpose and scope. 

(a) The procedural rules in this part 

apply under the Davis-Bacon Act (946 

Stat. 1494, as amended; 40 U.S.C. 3141 

et seq.), and any laws now existing or 

subsequently enacted, which provide 

for the payment of minimum wages, 

including fringe benefits, to laborers and 

mechanics engaged in construction 

activity under contracts entered into or 

financed by or with the assistance of 

agencies of the United States or the 

District of Columbia, based on 

determinations by the Secretary of Labor 

of the wage rates and fringe benefits 

prevailing for the corresponding classes 

of laborers and mechanics employed on 

projects similar to the contract work in 

the local areas where such work is to be 

performed. 

(1) A listing of laws requiring the 

payment of wages at rates 

predetermined by the Secretary of Labor 

under the Davis-Bacon Act is currently 

found at www.dol.gov/agencies/whd/ 

government-contracts. 

(2) Functions of the Secretary of Labor 

under these statutes and under 

Reorganization Plan No. 14 of 1950 (64 

Stat. 1267, as amended; 5 U.S.C. 

Appendix), except for functions 

assigned to the Office of Administrative 

Law Judges (see part 6 of this subtitle) 

and appellate functions assigned to the 

Administrative Review Board (see part 7 

of this subtitle) or reserved by the 

Secretary of Labor (see Secretary’s Order 

01–2020 (Feb. 21, 2020) have been 

delegated to the Administrator of the 

Wage and Hour Division and authorized 

representatives. 

(b) The regulations in this part set 

forth the procedures for making and 

applying such determinations of 

prevailing wage rates and fringe benefits 

pursuant to the Davis-Bacon Act and 

any laws now existing or subsequently 

enacted providing for determinations of 

such wages by the Secretary of Labor in 

accordance with the provisions of the 

Davis-Bacon Act. 

* * * * * 

■ 3. Revise § 1.2 to read as follows: 

§ 1.2 Definitions. 

Administrator. The term 

‘‘Administrator’’ means the 

Administrator of the Wage and Hour 

Division, U.S. Department of Labor, or 

authorized representative. 

Agency. The term ‘‘agency’’ means 

any Federal, State, or local agency or 

instrumentality, or other similar entity, 

that enters into a contract or provides 

assistance through loan, grant, loan 

guarantee or insurance, or otherwise, to 

a project subject to the Davis-Bacon 

labor standards, as defined in § 5.2 of 

this subtitle. 

(1) Federal agency. The term ‘‘Federal 

agency’’ means an agency or 

instrumentality of the United States or 

the District of Columbia, as defined in 

this section, that enters into a contract 

or provides assistance through loan, 

grant, loan guarantee or insurance, or 

otherwise, to a project subject to the 

Davis-Bacon labor standards. 

(2) [Reserved] 

Area. The term ‘‘area’’ means the city, 

town, village, county or other civil 

subdivision of the State in which the 

work is to be performed. 

(1) For highway projects, the area may 

be State department of transportation 

highway districts or other similar State 

subdivisions. 

(2) Where a project requires work in 

multiple counties, the area may include 

all counties in which the work will be 

performed. 

Department of Labor-approved 

website for wage determinations (DOLapproved website). The term 

‘‘Department of Labor-approved website 

for wage determinations’’ means the 

government website for both DavisBacon Act and Service Contract Act 

wage determinations. In addition, the 

DOL-approved website provides 

compliance assistance information. The 

term will also apply to any other 

website or electronic means that the 

Department of Labor may approve for 

these purposes. 

Employed. Every person performing 

the duties of a laborer or mechanic in 

the construction, prosecution, 

completion, or repair of a public 

building or public work, or building or 

work financed in whole or in part by 

assistance from the United States 

through loan, grant, loan guarantee or 

insurance, or otherwise, is employed 

regardless of any contractual 

relationship alleged to exist between the 

contractor and such person. 

Prevailing wage. The term ‘‘prevailing 

wage’’ means: 

(1) The wage paid to the majority 

(more than 50 percent) of the laborers or 

mechanics in the classification on 

similar projects in the area during the 

period in question; 

(2) If the same wage is not paid to a 

majority of those employed in the 

classification, the prevailing wage will 

be the wage paid to the greatest number, 

provided that such greatest number 

constitutes at least 30 percent of those 

employed; or 

(3) If no wage rate is paid to 30 

percent or more of those so employed, 

the prevailing wage will be the average 

of the wages paid to those employed in 

the classification, weighted by the total 

employed in the classification. 

Type of construction (or construction 

type). The term ‘‘type of construction (or 

construction type)’’ means the general 

category of construction, as established 

by the Administrator, for the 

publication of general wage 

determinations. Types of construction 

may include, but are not limited to, 

building, residential, heavy, and 

highway. As used in this part, the terms 

‘‘type of construction’’ and 

‘‘construction type’’ are synonymous 

and interchangeable. 

United States or the District of 

Columbia. The term ‘‘United States or 

the District of Columbia’’ means the 

United States, the District of Columbia, 

and all executive departments, 

independent establishments, 

administrative agencies, and 

instrumentalities of the United States 

and of the District of Columbia, and any 

corporation for which all or 

substantially all of the stock of which is 

beneficially owned by the United States, 

by the District of Columbia, or any of 

the foregoing departments, 

establishments, agencies, and 

instrumentalities. 

■ 4. Revise § 1.3 to read as follows: 

§ 1.3 Obtaining and compiling wage rate 

information. 

For the purpose of making wage 

determinations, the Administrator will 

conduct a continuing program for the 

obtaining and compiling of wage rate 

information. In determining the 

prevailing wages at the time of issuance 

of a wage determination, the 

Administrator will be guided by the 

definition of prevailing wage in § 1.2 

and will consider the types of 

information listed in this section. 

(a) The Administrator will encourage 

the voluntary submission of wage rate 

data by contractors, contractors’ 

associations, labor organizations, public 

officials and other interested parties, 

reflecting wage rates paid to laborers 

and mechanics on various types of 

construction in the area. The 

Administrator may also obtain data from 

agencies on wage rates paid on 

construction projects under their 

jurisdiction. The information submitted 

should reflect the wage rates paid to 

workers employed in a particular 

classification in an area, the type or 

types of construction on which such 

rate or rates are paid, and whether or 

not such wage rates were paid on 

Federal or federally assisted projects 

subject to Davis-Bacon prevailing wage 

requirements. 

(b) The following types of information 

may be considered in making wage rate 

determinations: 


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(1) Statements showing wage rates 

paid on projects, including the names 

and addresses of contractors, including 

subcontractors; the locations, 

approximate costs, dates of construction 

and types of projects, as well as whether 

or not the projects are Federal or 

federally assisted projects subject to 

Davis-Bacon prevailing wage 

requirements; and the number of 

workers employed in each classification 

on each project and the respective wage 

rates paid such workers. 

(2) Signed collective bargaining 

agreements, for which the Administrator 

may request that the parties to 

agreements submit statements certifying 

to their scope and application. 

(3) Wage rates determined for public 

construction by State and local officials 

pursuant to State and local prevailing 

wage legislation. 

(4) Wage rate data submitted to the 

Department of Labor by contracting 

agencies pursuant to § 5.5(a)(1)(iii) of 

this subtitle. 

(5) For Federal-aid highway projects 

under 23 U.S.C. 113, information 

obtained from the highway 

department(s) of the State(s) in which 

the project is to be performed. For such 

projects, the Administrator must consult 

the relevant State highway department 

and give due regard to the information 

thus obtained. 

(6) Any other information pertinent to 

the determination of prevailing wage 

rates. 

(c) The Administrator may initially 

obtain or supplement such information 

obtained on a voluntary basis by such 

means, including the holding of 

hearings, and from any sources 

determined to be necessary. All 

information of the types described in 

paragraph (b) of this section, pertinent 

to the determination of the wages 

prevailing at the time of issuance of the 

wage determination, will be evaluated 

in light of the definition of prevailing 

wage in § 1.2. 

(d) In compiling wage rate data for 

building and residential wage 

determinations, the Administrator will 

not use data from Federal or federally 

assisted projects subject to Davis-Bacon 

prevailing wage requirements unless it 

is determined that there is insufficient 

wage data to determine the prevailing 

wages in the absence of such data. Data 

from Federal or federally assisted 

projects will be used in compiling wage 

rate data for heavy and highway wage 

determinations. 

(e) In determining the prevailing 

wage, the Administrator may treat 

variable wage rates paid by a contractor 

or contractors to employees within the 

same classification as the same wage 

where the pay rates are functionally 

equivalent, as explained by a collective 

bargaining agreement or written policy 

otherwise maintained by the contractor. 

(f) If the Administrator determines 

that there is insufficient wage survey 

data to determine the prevailing wage 

for a classification for which 

conformance requests are regularly 

submitted pursuant to § 5.5(a)(1)(iii) of 

this subtitle, the Administrator may list 

the classification and wage and fringe 

benefit rates for the classification on the 

wage determination, provided that: 

(1) The work performed by the 

classification is not performed by a 

classification in the wage determination; 

(2) The classification is used in the 

area by the construction industry; and 

(3) The wage rate for the classification 

bears a reasonable relationship to the 

wage rates contained in the wage 

determination. 

(g) Under the circumstances described 

in paragraph (h) of this section, the 

Administrator may make a wage 

determination by adopting, with or 

without modification, one or more 

prevailing wage rates determined for 

public construction by State and/or 

local officials. Provided that the 

conditions in paragraph (h) are met, the 

Administrator may do so even if the 

methods and criteria used by State or 

local officials differ in some respects 

from those that the Administrator would 

otherwise use under the Davis-Bacon 

Act and the regulations in this part. 

Such differences may include, but are 

not limited to, a definition of prevailing 

wage under a State or local prevailing 

wage law or regulation that differs from 

the definition in § 1.2, a geographic area 

or scope that differs from the standards 

in § 1.7, and/or the restrictions on data 

use in paragraph (d) of this section. 

(h) The Administrator may adopt a 

State or local wage rate as described in 

paragraph (g) of this section if the 

Administrator, after reviewing the rate 

and the processes used to derive the 

rate, determines that: 

(1) The State or local government sets 

wage rates, and collects relevant data, 

using a survey or other process that is 

open to full participation by all 

interested parties; 

(2) The wage rate reflects both a basic 

hourly rate of pay as well as any 

prevailing fringe benefits, each of which 

can be calculated separately; 

(3) The State or local government 

classifies laborers and mechanics in a 

manner that is recognized within the 

field of construction; and 

(4) The State or local government’s 

criteria for setting prevailing wage rates 

are substantially similar to those the 

Administrator uses in making wage 

determinations under this part. This 

determination will be based on the 

totality of the circumstances, including, 

but not limited to, the State or local 

government’s definition of prevailing 

wage; the types of fringe benefits it 

accepts; the information it solicits from 

interested parties; its classification of 

construction projects, laborers, and 

mechanics; and its method for 

determining the appropriate geographic 

area(s). 

(i) In order to adopt wage rates of a 

State or local government entity 

pursuant to paragraphs (g) and (h) of 

this section, the Administrator must 

obtain the wage rates and any relevant 

supporting documentation and data, 

from the State or local government 

entity. Such information may be 

submitted via email to 

dba.statelocalwagerates@dol.gov, via 

mail to U.S. Department of Labor, Wage 

and Hour Division, Branch of Wage 

Surveys, 200 Constitution Avenue NW, 

Washington, DC 20210, or through other 

means directed by the Administrator. 

(j) Nothing in paragraphs (g), (h), and 

(i) of this section precludes the 

Administrator from otherwise 

considering State or local prevailing 

wage rates, consistent with paragraph 

(b)(3) of this section, or from giving due 

regard to information obtained from 

State highway departments, consistent 

with paragraph (b)(4) of this section, as 

part of the Administrator’s process of 

making prevailing wage determinations 

under this part. 

■ 5. Revise § 1.4 to read as follows: 

§ 1.4 Report of agency construction 

programs. 

At the beginning of each fiscal year, 

each Federal agency using wage 

determinations under the Davis-Bacon 

Act or any of the laws referenced by 

§ 5.1 of this subtitle, must furnish the 

Administrator with a report that 

contains a general outline of its 

proposed construction programs for the 

upcoming 3 fiscal years. This report 

must include a list of proposed projects 

(including those for which options to 

extend the contract term of an existing 

construction contract are expected 

during the period covered by the 

report): the estimated start date of 

construction; the anticipated type or 

types of construction; the estimated cost 

of construction; the location or locations 

of construction; and any other projectspecific information that the 

Administrator requests. The report must 

also include notification of any 

significant changes to previously 

reported construction programs, such as 

the delay or cancellation of previously 

reported projects. Reports must be 


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submitted no later than April 10th of 

each year by email to 

DavisBaconFedPlan@dol.gov, and must 

include the name, telephone number, 

and email address of the official 

responsible for coordinating the 

submission. 

■ 6. Amend § 1.5 by revising paragraphs 

(a) and (b) and adding a heading to 

paragraph (c) to read as follows: 

§ 1.5 Publication of general wage 

determinations and procedure for 

requesting project wage determinations. 

(a) General wage determinations. A 

general wage determination contains, 

among other information, a list of wage 

and fringe benefit rates determined to be 

prevailing for various classifications of 

laborers or mechanics for specified 

type(s) of construction in a given area. 

The Department of Labor publishes 

general wage determinations under the 

Davis-Bacon Act on the DOL-approved 

website. 

(b) Project wage determinations. (1) A 

project wage determination is specific to 

a particular project. An agency may 

request a project wage determination for 

an individual project under any of the 

following circumstances: 

(i) The project involves work in more 

than one county and will employ 

workers who may work in more than 

one county; 

(ii) There is no general wage 

determination in effect for the relevant 

area and type(s) of construction for an 

upcoming project, or 

(iii) All or virtually all of the work on 

a contract will be performed by a 

classification that is not listed in the 

general wage determination that would 

otherwise apply, and contract award (or 

bid opening, in contracts entered into in 

sealed bidding procedures) has not yet 

taken place. 

(2) To request a project wage 

determination, the agency must submit 

Standard Form (SF) 308, Request for 

Wage Determination and Response to 

Request, to the Department of Labor, 

either by mailing the form to U.S. 

Department of Labor, Wage and Hour 

Division, Branch of Construction Wage 

Determinations, Washington, DC 20210, 

or by submitting the form through other 

means directed by the Administrator. 

(3) In completing Form SF–308, the 

agency must include the following 

information: 

(i) A sufficiently detailed description 

of the work to indicate the type(s) of 

construction involved, as well as any 

additional description or separate 

attachment, if necessary, for 

identification of the type(s) of work to 

be performed. If the project involves 

multiple types of construction, the 

requesting agency must attach 

information indicating the expected cost 

breakdown by type of construction. 

(ii) The location (city, county, state, 

zip code) or locations in which the 

proposed project is located. 

(iii) The classifications needed for the 

project. The agency must identify only 

those classifications that will be needed 

in the performance of the work. 

Inserting a note such as ‘‘entire 

schedule’’ or ‘‘all applicable 

classifications’’ is not sufficient. 

Additional classifications needed that 

are not on the form may be typed in the 

blank spaces or on a separate list and 

attached to the form. 

(iv) Any other information requested 

in Form SF–308. 

(4) A request for a project wage 

determination must be accompanied by 

any pertinent wage information that 

may be available. When the requesting 

agency is a State highway department 

under the Federal-Aid Highway Acts as 

codified in 23 U.S.C. 113, such agency 

must also include its recommendations 

as to the wages which are prevailing for 

each classification of laborers and 

mechanics on similar construction in 

the area. 

(5) The time required for processing 

requests for project wage determinations 

varies according to the facts and 

circumstances in each case. An agency 

should anticipate that such processing 

by the Department of Labor will take at 

least 30 days. 

(c) Processing time. * * * 

■ 7. Revise § 1.6 to read as follows: 

§ 1.6 Use and effectiveness of wage 

determinations. 

(a) Application, Validity, and 

Expiration of Wage Determinations—(1) 

Application of incorporated wage 

determinations. Once a wage 

determination is incorporated into a 

contract (or once construction has 

started when there is no contract 

award), the wage determination 

generally applies for the duration of the 

contract or project, except as specified 

in this section. 

(2) General wage determinations. (i) 

General wage determinations published 

on the DOL-approved website contain 

no expiration date. Once issued, a 

general wage determination remains 

valid until revised, superseded, or 

canceled. 

(ii) If there is a current general wage 

determination applicable to a project, an 

agency may use it without notifying the 

Administrator, Provided that questions 

concerning its use are referred to the 

Administrator in accordance with 

paragraph (b) of this section. 

(iii) When a wage determination is 

revised, superseded, or canceled, it 

becomes inactive. Inactive wage 

determinations may be accessed on the 

DOL-approved website for informational 

purposes only. Contracting officers may 

not use such an inactive wage 

determination in a contract action 

unless the inactive wage determination 

is the appropriate wage determination 

that must be incorporated to give 

retroactive effect to the post-award 

incorporation of a contract clause under 

§ 5.6(a)(1)(ii) of this subtitle or a wage 

determination under paragraph (f) of 

this section. Under such circumstances, 

the agency must provide prior notice to 

the Administrator of its intent to 

incorporate an inactive wage 

determination, and may not incorporate 

it if the Administrator instructs 

otherwise. 

(3) Project wage determinations. (i) 

Project wage determinations initially 

issued will be effective for 180 calendar 

days from the date of such 

determinations. If a project wage 

determination is not incorporated into a 

contract (or, if there is no contract 

award, if construction has not started) in 

the period of its effectiveness it is void. 

(ii) Accordingly, if it appears that a 

project wage determination may expire 

between bid opening and contract 

award (or between initial endorsement 

under the National Housing Act or the 

execution of an agreement to enter into 

a housing assistance payments contract 

under section 8 of the U.S. Housing Act 

of 1937, and the start of construction) 

the agency shall request a new project 

wage determination sufficiently in 

advance of the bid opening to assure 

receipt prior thereto. 

(iii) However, when due to 

unavoidable circumstances a project 

wage determination expires before 

award but after bid opening (or before 

the start of construction, but after initial 

endorsement under the National 

Housing Act, or before the start of 

construction but after the execution of 

an agreement to enter into a housing 

assistance payments contract under 

section 8 of the U.S. Housing Act of 

1937), the head of the agency or his or 

her designee may request the 

Administrator to extend the expiration 

date of the project wage determination 

in the bid specifications instead of 

issuing a new project wage 

determination. Such request shall be 

supported by a written finding, which 

shall include a brief statement of factual 

support, that the extension of the 

expiration date of the project wage 

determination is necessary and proper 

in the public interest to prevent 

injustice or undue hardship or to avoid 


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serious impairment in the conduct of 

Government business. The 

Administrator will either grant or deny 

the request for an extension after 

consideration of all of the 

circumstances, including an 

examination to determine if the 

previously issued rates remain 

prevailing. If the request for extension is 

denied, the Administrator will proceed 

to issue a new wage determination for 

the project. 

(b) Identifying and incorporating 

appropriate wage determinations. (1) 

Contracting agencies are responsible for 

making the initial determination of the 

appropriate wage determination(s) for a 

project and for ensuring that the 

appropriate wage determination(s) are 

incorporated in bid solicitations and 

contract specifications and that 

inapplicable wage determinations are 

not incorporated. When a contract 

involves construction in more than one 

area, and no multi-county project wage 

determination has been obtained, the 

solicitation and contract must 

incorporate the applicable wage 

determination for each area. When a 

contract involves more than one type of 

construction, the solicitation and 

contract must incorporate the applicable 

wage determination for each type of 

construction involved that is anticipated 

to be substantial. The contracting 

agency is responsible for designating the 

specific work to which each 

incorporated wage determination 

applies. 

(2) The contractor or subcontractor 

has an affirmative obligation to ensure 

that its pay practices are in compliance 

with the Davis-Bacon Act labor 

standards. 

(3) Any question regarding 

application of wage rate schedules or 

wage determinations must be referred to 

the Administrator for resolution. The 

Administrator should consider any 

relevant factors when resolving such 

questions, including, but not limited to, 

relevant area practice information. 

(c) Revisions to wage determinations. 

(1) General and project wage 

determinations may be revised from 

time to time to keep them current. A 

revised wage determination replaces the 

previous wage determination. 

‘‘Revisions,’’ as used in this section, 

refers both to modifications of some or 

all of the rates in a wage determination, 

such as periodic updates to reflect 

current rates, and to instances where a 

wage determination is re-issued 

entirely, such as after a new wage 

survey is conducted. Revisions also 

include adjustments to non-collectively 

bargained prevailing wage and fringe 

benefit rates on general wage 

determinations, with the adjustments 

based on U.S. Bureau of Labor Statistics 

Employment Cost Index (ECI) data or its 

successor data. Such rates may be 

adjusted based on ECI data no more 

frequently than once every 3 years, and 

no sooner than 3 years after the date of 

the rate’s publication. Such periodic 

revisions to wage determinations are 

distinguished from the circumstances 

described in paragraphs (d), (e), and (f) 

of this section. 

(2)(i) Whether a revised wage 

determination is effective with respect 

to a particular contract or project 

generally depends on the date on which 

the revised wage determination is 

issued. The date on which a revised 

wage determination is ‘‘issued,’’ as used 

in this section, means the date that a 

revised general wage determination is 

published on the DOL-approved website 

or the date that the contracting agency 

receives actual written notice of a 

revised project wage determination. 

(ii) If a revised wage determination is 

issued before contract award (or the 

start of construction when there is no 

award), it is effective with respect to the 

project, except as follows: 

(A) For contracts entered into 

pursuant to sealed bidding procedures, 

a revised wage determination issued at 

least 10 calendar days before the 

opening of bids is effective with respect 

to the solicitation and contract. If a 

revised wage determination is issued 

less than 10 calendar days before the 

opening of bids, it is effective with 

respect to the solicitation and contract 

unless the agency finds that there is not 

a reasonable time still available before 

bid opening to notify bidders of the 

revision and a report of the finding is 

inserted in the contract file. A copy of 

such report must be made available to 

the Administrator upon request. No 

such report is required if the revision is 

issued after bid opening. 

(B) In the case of projects assisted 

under the National Housing Act, a 

revised wage determination is effective 

with respect to the project if it is issued 

prior to the beginning of construction or 

the date the mortgage is initially 

endorsed, whichever occurs first. 

(C) In the case of projects to receive 

housing assistance payments under 

section 8 of the U.S. Housing Act of 

1937, a revised wage determination is 

effective with respect to the project if it 

is issued prior to the beginning of 

construction or the date the agreement 

to enter into a housing assistance 

payments contract is signed, whichever 

occurs first. 

(D) If, in the case of a contract entered 

into pursuant to sealed bidding 

procedures under paragraph (c)(2)(ii)(A) 

of this section the contract has not been 

awarded within 90 days after bid 

opening, or if, in the case of projects 

assisted under the National Housing Act 

or receiving housing assistance 

payments section 8 of the U.S. Housing 

Act of 1937 under paragraph (c)(2)(ii)(B) 

or (C) of this section, construction has 

not begun within 90 days after initial 

endorsement or the signing of the 

agreement to enter into a housing 

assistance payments contract, any 

revised general wage determination 

issued prior to award of the contract or 

the beginning of construction, as 

appropriate, is effective with respect to 

that contract unless the head of the 

agency or the agency head’s designee 

requests and obtains an extension of the 

90-day period from the Administrator. 

Such request must be supported by a 

written finding, which includes a brief 

statement of the factual support, that the 

extension is necessary and proper in the 

public interest to prevent injustice or 

undue hardship or to avoid serious 

impairment in the conduct of 

Government business. The 

Administrator will either grant or deny 

the request for an extension after 

consideration of all the circumstances. 

(iii) If a revised wage determination is 

issued after contract award (or after the 

beginning of construction where there is 

no contract award), it is not effective 

with respect to that project, except 

under the following circumstances: 

(A) Where a contract or order is 

changed to include additional, 

substantial construction, alteration, and/ 

or repair work not within the scope of 

work of the original contract or order, or 

to require the contractor to perform 

work for an additional time period not 

originally obligated, including where an 

agency exercises an option provision to 

unilaterally extend the term of a 

contract, the contracting agency must 

include the most recent revision of any 

wage determination(s) at the time the 

contract is changed or the option is 

exercised. This does not apply where 

the contractor is simply given additional 

time to complete its original 

commitment or where the additional 

construction, alteration, and/or repair 

work in the modification is merely 

incidental. 

(B) Some contracts call for 

construction, alteration, and/or repair 

work over a period of time that is not 

tied to the completion of any particular 

project. Examples of such contracts 

include, but are not limited to, 

indefinite-delivery-indefinite-quantity 

construction contracts to perform any 

necessary repairs to a Federal facility 

over a period of time; long-term 

operations-and-maintenance contracts 


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that may include construction, 

alteration, and/or repair work covered 

by Davis-Bacon labor standards; or 

schedule contracts or blanket purchase 

agreements in which a contractor agrees 

to provide certain construction work at 

agreed-upon prices to Federal agencies. 

These types of contracts often involve a 

general commitment to perform 

necessary construction as the need 

arises, but do not necessarily specify the 

exact construction to be performed. For 

the types of contracts described here, 

the contracting agency must incorporate 

into the contract the most recent 

revision(s) of any applicable wage 

determination(s) on each anniversary 

date of the contract’s award (or each 

anniversary date of the beginning of 

construction when there is no award), or 

another similar anniversary date where 

the agency has sought and received 

prior approval from the Department for 

the alternative date. Such revised wage 

determination(s) will apply to any 

construction work that begins or is 

obligated under such a contract during 

the 12 months following that 

anniversary date until such construction 

work is completed, even if the 

completion of that work extends beyond 

the twelve-month period. Where such 

contracts have task orders, purchase 

orders, or other similar contract 

instruments awarded under the master 

contract, the contracting and ordering 

agency must include the applicable 

updated wage determination in such 

task orders, purchase orders, or other 

similar contract instrument. 

(d) Corrections for clerical errors. 

Upon the Administrator’s own initiative 

or at the request of an agency, the 

Administrator may correct any wage 

determination, without regard to 

paragraph (a) or (c) of this section, 

whenever the Administrator finds that it 

contains clerical errors. Such 

corrections must be included in any 

solicitations, bidding documents, or 

ongoing contracts containing the wage 

determination in question, and such 

inclusion, and application of the 

correction(s), must be retroactive to the 

start of construction if construction has 

begun. 

(e) Pre-award determinations that a 

wage determination may not be used. If, 

prior to the award of a contract (or the 

start of construction under the National 

Housing Act, under section 8 of the U.S. 

Housing Act of 1937, or where there is 

no contract award), the Administrator 

provides written notice that: 

(1) The wrong wage determination or 

the wrong schedule was included in the 

bidding documents or solicitation; or 

(2) A wage determination included in 

the bidding documents or solicitation 

was withdrawn by the Department of 

Labor as a result of a decision by the 

Administrative Review Board, the wage 

determination may not be used for the 

contract, without regard to whether bid 

opening (or initial endorsement or the 

signing of a housing assistance 

payments contract) has occurred. 

(f) Post-award determinations and 

procedures. (1) If a contract subject to 

the labor standards provisions of the 

laws referenced by § 5.1 of this subtitle 

is entered into without the correct wage 

determination(s), the agency must, upon 

the request of the Administrator or upon 

its own initiative, incorporate the 

correct wage determination into the 

contract or require its incorporation. 

Where the agency is not entering 

directly into such a contract but instead 

is providing Federal financial 

assistance, the agency must ensure that 

the recipient or sub-recipient of the 

Federal assistance similarly 

incorporates the correct wage 

determination(s) into its contracts. 

(2) The Administrator may require the 

agency to incorporate a wage 

determination after contract award or 

after the beginning of construction if the 

agency has failed to incorporate a wage 

determination in a contract required to 

contain prevailing wage rates 

determined in accordance with the 

Davis-Bacon Act, or has used a wage 

determination which by its terms or the 

provisions of this part clearly does not 

apply to the contract. Further, the 

Administrator may require the 

application of the correct wage 

determination to a contract after 

contract award or after the beginning of 

construction when it is found that the 

wrong wage determination has been 

incorporated in the contract because of 

an inaccurate description of the project 

or its location in the agency’s request for 

the wage determination. 

(3) Under any of the circumstances 

described in paragraphs (f)(1) and (2) of 

this section, the agency must either 

terminate and resolicit the contract with 

the correct wage determination, or 

incorporate the correct wage 

determination into the contract (or 

ensure it is so incorporated) through 

supplemental agreement, change order, 

or any other authority that may be 

needed. The method of incorporation of 

the correct wage determination, and 

adjustment in contract price, where 

appropriate, should be in accordance 

with applicable law. Additionally, the 

following requirements apply: 

(i) Unless the Administrator directs 

otherwise, the incorporation of the 

correct wage determination(s) must be 

retroactive to the date of contract award 

or start of construction if there is no 

award. 

(ii) If incorporation occurs as the 

result of a request from the 

Administrator, the incorporation must 

take place within 30 days of the date of 

that request, unless the agency has 

obtained an extension from the 

Administrator. 

(iii) Before the agency requires 

incorporation upon its own initiative, it 

must provide notice to the 

Administrator of the proposed action. 

(iv) The contractor must be 

compensated for any increases in wages 

resulting from incorporation of a 

missing wage determination. 

(v) If a recipient or sub-recipient of 

Federal assistance under any of the 

applicable statutes referenced by § 5.1 of 

this subtitle refuses to incorporate the 

wage determination as required, the 

agency must make no further payment, 

advance, grant, loan, or guarantee of 

funds in connection with the contract 

until the recipient incorporates the 

required wage determination into its 

contract, and must promptly refer the 

dispute to the Administrator for further 

proceedings under § 5.13 of this subtitle. 

(vi) Before terminating a contract 

pursuant to this section, the agency 

must withhold or cross-withhold 

sufficient funds to remedy any backwage liability resulting from the failure 

to incorporate the correct wage 

determination or otherwise identify and 

obligate sufficient funds through a 

termination settlement agreement, bond, 

or other satisfactory mechanism. 

(4) Under any of the above 

circumstances, notwithstanding the 

requirement to incorporate the correct 

wage determination(s) within 30 days, 

the correct wage determination(s) will 

be effective by operation of law, 

retroactive to the date of award or the 

beginning of construction (under the 

National Housing Act, under section 8 

of the U.S. Housing Act of 1937, or 

where there is no contract award), in 

accordance with § 5.5(e) of this subtitle. 

(g) Approval of Davis-Bacon Related 

Act Federal funding or assistance after 

contract award. If Federal funding or 

assistance under a statute requiring 

payment of wages determined in 

accordance with the Davis-Bacon Act is 

not approved prior to contract award (or 

the beginning of construction where 

there is no contract award), the 

applicable wage determination must be 

incorporated based upon the wages and 

fringe benefits found to be prevailing on 

the date of award or the beginning of 

construction (under the National 

Housing Act, under section 8 of the U.S. 

Housing Act of 1937, or where there is 

no contract award), as appropriate, and 


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must be incorporated in the contract 

specifications retroactively to that date, 

Provided that upon the request of the 

head of the Federal agency providing 

the Federal funding or assistance, in 

individual cases the Administrator may 

direct incorporation of the wage 

determination to be effective on the date 

of approval of Federal funds or 

assistance whenever the Administrator 

finds that it is necessary and proper in 

the public interest to prevent injustice 

or undue hardship, Provided further 

that the Administrator finds no 

evidence of intent to apply for Federal 

funding or assistance prior to contract 

award or the start of construction, as 

appropriate. 

■ 8. Revise § 1.7 to read as follows: 

§ 1.7 Scope of consideration. 

(a) In making a wage determination, 

the area from which wage data will be 

drawn will normally be the county 

unless sufficient current wage data (data 

on wages paid on current projects or, 

where necessary, projects under 

construction no more than 1 year prior 

to the beginning of the survey or the 

request for a wage determination, as 

appropriate) is unavailable to make a 

wage determination. 

(b) If sufficient current wage data is 

not available from projects within the 

county to make a wage determination, 

wages paid on similar construction in 

surrounding counties may be 

considered. 

(c) If sufficient current wage data is 

not available in surrounding counties, 

the Administrator may consider wage 

data from similar construction in 

comparable counties or groups of 

counties in the State, and, if necessary, 

overall statewide data. 

(d) If sufficient current statewide 

wage data is not available, wages paid 

on projects completed more than 1 year 

prior to the beginning of the survey or 

the request for a wage determination, as 

appropriate, may be considered. 

(e) The use of helpers and apprentices 

is permitted in accordance with part 5 

of this subtitle. 

■ 9. Revise § 1.8 to read as follows: 

§ 1.8 Reconsideration by the 

Administrator. 

(a) Any interested party may seek 

reconsideration of a wage determination 

issued under this part or of a decision 

of the Administrator regarding 

application of a wage determination. 

(b) Such a request for reconsideration 

must be in writing, accompanied by a 

full statement of the interested party’s 

views and any supporting wage data or 

other pertinent information. Requests 

must be submitted via email to 

dba.reconsideration@dol.gov; by mail to 

Administrator, Wage and Hour Division, 

U.S. Department of Labor, 200 

Constitution Ave. NW, Washington, DC 

20210; or through other means directed 

by the Administrator. The 

Administrator will respond within 30 

days of receipt thereof, or will notify the 

requestor within the 30-day period that 

additional time is necessary. 

(c) If the decision for which 

reconsideration is sought was made by 

an authorized representative of the 

Administrator of the Wage and Hour 

Division, the interested party seeking 

reconsideration may request further 

reconsideration by the Administrator of 

the Wage and Hour Division. Such a 

request must be submitted within 30 

days from the date the decision is 

issued; this time may be extended for 

good cause at the discretion of the 

Administrator upon a request by the 

interested party. The procedures in 

paragraph (b) of this section apply to 

any such reconsideration requests. 

■ 10. Add § 1.10 to read as follows: 

§ 1.10 Severability. 

The provisions of this part are 

separate and severable and operate 

independently from one another. If any 

provision of this part is held to be 

invalid or unenforceable by its terms, or 

as applied to any person or 

circumstance, or stayed pending further 

agency action, the provision is to be 

construed so as to continue to give the 

maximum effect to the provision 

permitted by law, unless such holding 

is one of utter invalidity or 

unenforceability, in which event the 

provision is severable from this part and 

will not affect the remaining provisions. 

Appendix A to Part 1—[Removed] 

■ 11. Remove appendix A to part 1. 

Appendix B to Part 1—[Removed] 

■ 12. Remove appendix B to part 1. 

PART 3— CONTRACTORS AND 

SUBCONTRACTORS ON PUBLIC 

BUILDING OR PUBLIC WORK 

FINANCED IN WHOLE OR IN PART BY 

LOANS OR GRANTS FROM THE 

UNITED STATES 

■ 13. The authority citation for part 3 

continues to read as follows: 

Authority: R.S. 161, 48 Stat. 848, Reorg. 

Plan No. 14 of 1950, 64 Stat. 1267; 5 U.S.C. 

301; 40 U.S.C. 3145; Secretary’s Order 01– 

2014 (Dec. 19, 2014), 79 FR 77527 (Dec. 24, 

2014). 

■ 14. Revise § 3.1 to read as follows: 

§ 3.1 Purpose and scope. 

This part prescribes ‘‘anti-kickback’’ 

regulations under section 2 of the Act of 

June 13, 1934, as amended (40 U.S.C. 

3145), popularly known as the Copeland 

Act. This part applies to any contract 

which is subject to Federal wage 

standards and which is for the 

construction, prosecution, completion, 

or repair of public buildings, public 

works or buildings or works financed in 

whole or in part by loans or grants from 

the United States. The part is intended 

to aid in the enforcement of the 

minimum wage provisions of the DavisBacon Act and the various statutes 

dealing with federally assisted 

construction that contain similar 

minimum wage provisions, including 

those provisions which are not subject 

to Reorganization Plan No. 14 of 1950 

(e.g., the College Housing Act of 1950, 

the Federal Water Pollution Control Act, 

and the Housing Act of 1959), and in the 

enforcement of the overtime provisions 

of the Contract Work Hours and Safety 

Standards Act whenever they are 

applicable to construction work. The 

part details the obligation of contractors 

and subcontractors relative to the 

weekly submission of statements 

regarding the wages paid on work 

covered thereby; sets forth the 

circumstances and procedures 

governing the making of payroll 

deductions from the wages of those 

employed on such work; and delineates 

the methods of payment permissible on 

such work. 

■ 15. Revise § 3.2 to read as follows: 

§ 3.2 Definitions. 

As used in the regulations in this part: 

Affiliated person. The term ‘‘affiliated 

person’’ includes a spouse, child, 

parent, or other close relative of the 

contractor or subcontractor; a partner or 

officer of the contractor or 

subcontractor; a corporation closely 

connected with the contractor or 

subcontractor as parent, subsidiary, or 

otherwise, and an officer or agent of 

such corporation. 

Agency. The term ‘‘agency’’ means 

any Federal, State, or local government 

agency or instrumentality, or other 

similar entity, that enters into a contract 

or provides assistance through loan, 

grant, loan guarantee or insurance, or 

otherwise, for a project subject to the 

Davis-Bacon labor standards, as defined 

in § 5.2 of this subtitle. 

(1) Federal agency. The term ‘‘Federal 

agency’’ means an agency or 

instrumentality of the United States or 

the District of Columbia, as defined in 

this section, that enters into a contract 

or provides assistance through loan, 

grant, loan guarantee or insurance, or 

otherwise, to a project subject to the 

Davis-Bacon labor standards. 

(2) [Reserved] 


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Building or work. The term ‘‘building 

or work’’ generally includes 

construction activity of all types, as 

distinguished from manufacturing, 

furnishing of materials, or servicing and 

maintenance work. The term includes, 

without limitation, buildings, 

structures, and improvements of all 

types, such as bridges, dams, solar 

panels, wind turbines, broadband 

installation, installation of electric car 

chargers, plants, highways, parkways, 

streets, subways, tunnels, sewers, 

mains, powerlines, pumping stations, 

heavy generators, railways, airports, 

terminals, docks, piers, wharves, ways, 

lighthouses, buoys, jetties, breakwaters, 

levees, and canals; dredging, shoring, 

scaffolding, drilling, blasting, 

excavating, clearing, and landscaping. 

The term ‘‘building or work’’ also 

includes a portion of a building or work, 

or the installation (where appropriate) 

of equipment or components into a 

building or work. 

(1) Building or work financed in 

whole or in part by loans or grants from 

the United States. The term ‘‘building or 

work financed in whole or in part by 

loans or grants from the United States’’ 

includes any building or work for which 

construction, prosecution, completion, 

or repair, as defined in this section, 

payment or part payment is made 

directly or indirectly from funds 

provided by loans or grants by a Federal 

agency. The term includes any building 

or work for which the Federal assistance 

granted is in the form of loan guarantees 

or insurance. 

(2) [Reserved] 

Construction, prosecution, 

completion, or repair. The term 

‘‘construction, prosecution, completion, 

or repair’’ mean all types of work done 

on a particular building or work at the 

site thereof as specified in § 5.2 of this 

subtitle, including, without limitation, 

altering, remodeling, painting and 

decorating, installation on the site of the 

work of items fabricated off-site, 

transportation as reflected in § 5.2, 

demolition as reflected in § 5.2, and the 

manufacturing or furnishing of 

materials, articles, supplies, or 

equipment on the site of the building or 

work, performed by laborers and 

mechanics at the site. 

Employed (and wages). Every person 

paid by a contractor or subcontractor in 

any manner for their labor in the 

construction, prosecution, completion, 

or repair of a public building or public 

work or building or work financed in 

whole or in part by assistance from the 

United States through loan, grant, loan 

guarantee or insurance, or otherwise, is 

employed and receiving wages, 

regardless of any contractual 

relationship alleged to exist between 

him and the real employer. 

Public building (or public work). The 

term ‘‘public building (or public work)’’ 

includes a building or work the 

construction, prosecution, completion, 

or repair of which, as defined in this 

section, is carried on directly by 

authority of or with funds of a Federal 

agency to serve the general public 

regardless of whether title thereof is in 

a Federal agency. The construction, 

prosecution, completion, or repair of a 

portion of a building or work may still 

be considered a public building or work, 

even where the entire building or work 

is not owned, leased by, or to be used 

by the Federal agency, as long as the 

construction, prosecution, completion, 

or repair of that portion of the building 

or work is carried on by authority of or 

with funds of a Federal agency to serve 

the interest of the general public. 

United States or the District of 

Columbia. The term ‘‘United States or 

the District of Columbia’’ means the 

United States, the District of Columbia, 

and all executive departments, 

independent establishments, 

administrative agencies, and 

instrumentalities of the United States 

and of the District of Columbia, and any 

corporation for which all or 

substantially all of the stock of which is 

beneficially owned by the United States, 

by the District of Columbia, or any of 

the foregoing departments, 

establishments, agencies, and 

instrumentalities. 

■ 16. Revise § 3.3 to read as follows: 

§ 3.3 Certified payrolls. 

(a) [Reserved] 

(b) Each contractor or subcontractor 

engaged in the construction, 

prosecution, completion, or repair of 

any public building or public work, or 

building or work financed in whole or 

in part by loans or grants from the 

United States, each week must provide 

a copy of its weekly payroll for all 

laborers and mechanics engaged on 

work covered by this part and part 5 of 

this chapter during the preceding 

weekly payroll period, accompanied by 

a statement of compliance certifying the 

accuracy of the weekly payroll 

information. This statement must be 

executed by the contractor or 

subcontractor or by an authorized 

officer or employee of the contractor or 

subcontractor who supervises the 

payment of wages, and must be on the 

back of Form WH–347, ‘‘Payroll (For 

Contractors Optional Use)’’ or on any 

form with identical wording. Copies of 

WH–347 may be obtained from the 

contracting or sponsoring agency or 

from the Wage and Hour Division 

website at https://www.dol.gov/ 

agencies/whd/government-contracts/ 

construction/forms or its successor site. 

The signature by the contractor, 

subcontractor, or the authorized officer 

or employee must be an original 

handwritten signature or a legally valid 

electronic signature. 

(c) The requirements of this section 

shall not apply to any contract of $2,000 

or less. 

(d) Upon a written finding by the 

head of a Federal agency, the Secretary 

of Labor may provide reasonable 

limitations, variations, tolerances, and 

exemptions from the requirements of 

this section subject to such conditions 

as the Secretary of Labor may specify. 

■ 17. Revise § 3.4 to read as follows: 

§ 3.4 Submission of certified payroll and 

the preservation and inspection of weekly 

payroll records. 

(a) Certified payroll. Each certified 

payroll required under § 3.3 must be 

delivered by the contractor or 

subcontractor, within 7 days after the 

regular payment date of the payroll 

period, to a representative at the site of 

the building or work of the agency 

contracting for or financing the work, or, 

if there is no representative of the 

agency at the site of the building or 

work, the statement must be delivered 

by mail or by any other means normally 

assuring delivery by the contractor or 

subcontractor, within that 7 day time 

period, to the agency contracting for or 

financing the building or work. After the 

certified payrolls have been reviewed in 

accordance with the contracting or 

sponsoring agency’s procedures, such 

certified payrolls must be preserved by 

the Federal agency for a period of 3 

years after all the work on the prime 

contract is completed and must be 

produced for inspection, copying, and 

transcription by the Department of 

Labor upon request. The certified 

payrolls must also be transmitted 

together with a report of any violation, 

in accordance with applicable 

procedures prescribed by the United 

States Department of Labor. 

(b) Recordkeeping. Each contractor or 

subcontractor must preserve the regular 

payroll records for a period of 3 years 

after all the work has been completed on 

the prime contract. The regular payroll 

records must set out accurately and 

completely the name; Social Security 

number; last known address, telephone 

number, and email address of each 

laborer and mechanic; each worker’s 

correct classification(s) of work actually 

performed; hourly rates of wages paid 

(including rates of contributions or costs 

anticipated for bona fide fringe benefits 

or cash equivalents thereof); daily and 


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weekly number of hours actually 

worked in total and on each covered 

contract; deductions made; and actual 

wages paid. The contractor or 

subcontractor must make such regular 

payroll records, as well as copies of the 

certified payrolls provided to the 

contracting or sponsoring agency, 

available at all times for inspection, 

copying, and transcription by the 

contracting officer or his authorized 

representative, and by authorized 

representatives of the Department of 

Labor. 

■ 18. Revise § 3.5 to read as follows: 

§ 3.5 Payroll deductions permissible 

without application to or approval of the 

Secretary of Labor. 

Deductions made under the 

circumstances or in the situations 

described in the paragraphs of this 

section may be made without 

application to and approval of the 

Secretary of Labor: 

(a) Any deduction made in 

compliance with the requirements of 

Federal, State, or local law, such as 

Federal or State withholding income 

taxes and Federal social security taxes. 

(b) Any deduction of sums previously 

paid to the laborer or mechanic as a 

bona fide prepayment of wages when 

such prepayment is made without 

discount or interest. A bona fide 

prepayment of wages is considered to 

have been made only when cash or its 

equivalent has been advanced to the 

person employed in such manner as to 

give him complete freedom of 

disposition of the advanced funds. 

(c) Any deduction of amounts 

required by court process to be paid to 

another, unless the deduction is in favor 

of the contractor, subcontractor, or any 

affiliated person, or when collusion or 

collaboration exists. 

(d) Any deduction constituting a 

contribution on behalf of the laborer or 

mechanic employed to funds 

established by the contractor or 

representatives of the laborers or 

mechanics, or both, for the purpose of 

providing either from principal or 

income, or both, medical or hospital 

care, pensions or annuities on 

retirement, death benefits, 

compensation for injuries, illness, 

accidents, sickness, or disability, or for 

insurance to provide any of the 

foregoing, or unemployment benefits, 

vacation pay, savings accounts, or 

similar payments for the benefit of the 

laborers or mechanics, their families 

and dependents: Provided, however, 

That the following standards are met: 

(1) The deduction is not otherwise 

prohibited by law; 

(2) It is either: 

(i) Voluntarily consented to by the 

laborer or mechanic in writing and in 

advance of the period in which the work 

is to be done and such consent is not a 

condition either for the obtaining of or 

for the continuation of employment; or 

(ii) Provided for in a bona fide 

collective bargaining agreement between 

the contractor or subcontractor and 

representatives of its laborers or 

mechanics; 

(3) No profit or other benefit is 

otherwise obtained, directly or 

indirectly, by the contractor or 

subcontractor or any affiliated person in 

the form of commission, dividend, or 

otherwise; and 

(4) The deductions shall serve the 

convenience and interest of the laborer 

or mechanic. 

(e) Any deduction requested by the 

laborer or mechanic to enable him or 

her to repay loans to or to purchase 

shares in credit unions organized and 

operated in accordance with Federal 

and State credit union statutes. 

(f) Any deduction voluntarily 

authorized by the laborer or mechanic 

for the making of contributions to 

governmental or quasi-governmental 

agencies, such as the American Red 

Cross. 

(g) Any deduction voluntarily 

authorized by the laborer or mechanic 

for the making of contributions to 

charitable organizations as defined by 

26 U.S.C 501(c)(3). 

(h) Any deductions to pay regular 

union initiation fees and membership 

dues, not including fines or special 

assessments: Provided, however, That a 

collective bargaining agreement between 

the contractor or subcontractor and 

representatives of its laborers or 

mechanics provides for such deductions 

and the deductions are not otherwise 

prohibited by law. 

(i) Any deduction not more than for 

the ‘‘reasonable cost’’ of board, lodging, 

or other facilities meeting the 

requirements of section 3(m) of the Fair 

Labor Standards Act of 1938, as 

amended, and 29 CFR part 531. When 

such a deduction is made the additional 

records required under 29 CFR 516.25(a) 

shall be kept. 

(j) Any deduction for the cost of safety 

equipment of nominal value purchased 

by the laborer or mechanic as his or her 

own property for his or her personal 

protection in his or her work, such as 

safety shoes, safety glasses, safety 

gloves, and hard hats, if such equipment 

is not required by law to be furnished 

by the contractor, if such deduction 

does not violate the Fair Labor 

Standards Act or any other law, if the 

cost on which the deduction is based 

does not exceed the actual cost to the 

contractor where the equipment is 

purchased from him or her and does not 

include any direct or indirect monetary 

return to the contractor where the 

equipment is purchased from a third 

person, and if the deduction is either: 

(1) Voluntarily consented to by the 

laborer or mechanic in writing and in 

advance of the period in which the work 

is to be done and such consent is not a 

condition either for the obtaining of 

employment or its continuance; or 

(2) Provided for in a bona fide 

collective bargaining agreement between 

the contractor or subcontractor and 

representatives of its laborers and 

mechanics. 

■ 19. Revise § 3.7 to read as follows: 

§ 3.7 Applications for the approval of the 

Secretary of Labor. 

Any application for the making of 

payroll deductions under § 3.6 shall 

comply with the requirements 

prescribed in the following paragraphs 

of this section: 

(a) The application must be in writing 

and addressed to the Secretary of Labor. 

The application must be submitted by 

email to dbadeductions@dol.gov, by 

mail to the United States Department of 

Labor, Wage and Hour Division, 

Director, Division of Government 

Contracts Enforcement, 200 Constitution 

Ave. NW, Room S–3502, Washington, 

DC 20210, or by any other means 

normally assuring delivery. 

(b) The application need not identify 

the contract or contracts under which 

the work in question is to be performed. 

Permission will be given for deductions 

on all current and future contracts of the 

applicant for a period of 1 year. A 

renewal of permission to make such 

payroll deduction will be granted upon 

the submission of an application which 

makes reference to the original 

application, recites the date of the 

Secretary of Labor’s approval of such 

deductions, states affirmatively that 

there is continued compliance with the 

standards set forth in the provisions of 

§ 3.6, and specifies any conditions 

which have changed in regard to the 

payroll deductions. 

(c) The application must state 

affirmatively that there is compliance 

with the standards set forth in the 

provisions of § 3.6. The affirmation must 

be accompanied by a full statement of 

the facts indicating such compliance. 

(d) The application must include a 

description of the proposed deduction, 

the purpose of the deduction, and the 

classes of laborers or mechanics from 

whose wages the proposed deduction 

would be made. 

(e) The application must state the 

name and business of any third person 


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to whom any funds obtained from the 

proposed deductions are to be 

transmitted and the affiliation of such 

person, if any, with the applicant. 

■ 20. Revise § 3.8 to read as follows: 

§ 3.8 Action by the Secretary of Labor 

upon applications. 

The Secretary of Labor will decide 

whether or not the requested deduction 

is permissible under provisions of § 3.6; 

and will notify the applicant in writing 

of the decision. 

■ 21. Revise § 3.11 to read as follows: 

§ 3.11 Regulations part of contract. 

All contracts made with respect to the 

construction, prosecution, completion, 

or repair of any public building or 

public work or building or work 

financed in whole or in part by loans or 

grants from the United States covered by 

the regulations in this part must 

expressly bind the contractor or 

subcontractor to comply with such of 

the regulations in this part as may be 

applicable. In this regard, see § 5.5(a) of 

this subtitle. However, these 

requirements will be considered to be 

effective by operation of law, whether or 

not they are incorporated into such 

contracts, as set forth in § 5.5(e) of this 

subtitle. 

PART 5—LABOR STANDARDS 

PROVISIONS APPLICABLE TO 

CONTRACTS COVERING FEDERALLY 

FINANCED AND ASSISTED 

CONSTRUCTION (ALSO LABOR 

STANDARDS PROVISIONS 

APPLICABLE TO NONCONSTRUCTION 

CONTRACTS SUBJECT TO THE 

CONTRACT WORK HOURS AND 

SAFETY STANDARDS ACT) 

■ 22. The authority citation for part 5 is 

revised to read as follows: 

Authority: 5 U.S.C. 301; R.S. 161, 64 Stat. 

1267; Reorganization Plan No. 14 of 1950, 5 

U.S.C. appendix; 40 U.S.C. 3141 et seq.; 40 

U.S.C. 3145; 40 U.S.C. 3148; 40 U.S.C. 3701 

et seq.; and the laws listed in 5.1(a) of this 

part; Secretary’s Order No. 01–2014 (Dec. 19, 

2014), 79 FR 77527 (Dec. 24, 2014); 28 U.S.C. 

2461 note (Federal Civil Penalties Inflation 

Adjustment Act of 1990); Pub. L. 114–74 at 

section 701, 129 Stat 584. 

■ 23. Revise § 5.1 to read as follows: 

§ 5.1 Purpose and scope. 

(a) The regulations contained in this 

part are promulgated under the 

authority conferred upon the Secretary 

of Labor by Reorganization Plan No. 14 

of 1950 (64 Stat. 1267, as amended, 5 

U.S.C. Appendix) and the Copeland Act 

(48 Stat. 948; 18 U.S.C. 874; 40 U.S.C. 

3145) in order to coordinate the 

administration and enforcement of labor 

standards provisions contained in the 

Davis-Bacon Act (946 Stat. 1494, as 

amended; 40 U.S.C. 3141 et seq.) and its 

related statutes (‘‘Related Acts’’). 

(1) A listing of laws requiring DavisBacon labor standards provisions is 

currently found at www.dol.gov/ 

agencies/whd/government-contracts. 

(b) Part 1 of this subtitle contains the 

Department’s procedural rules 

governing requests for wage 

determinations and the issuance and 

use of such wage determinations under 

the Davis-Bacon Act and its Related 

Acts. 

■ 24. Revise § 5.2 to read as follows: 

§ 5.2 Definitions. 

Administrator. The term 

‘‘Administrator’’ means the 

Administrator of the Wage and Hour 

Division, U.S. Department of Labor, or 

authorized representative. 

Agency. The term ‘‘agency’’ means 

any Federal, State, or local government 

agency or instrumentality, or other 

similar entity, that enters into a contract 

or provides assistance through loan, 

grant, loan guarantee or insurance, or 

otherwise, to a project subject to the 

Davis-Bacon labor standards, as defined 

in this section. 

(1) Federal agency. The term ‘‘Federal 

agency’’ means an agency or 

instrumentality of the United States or 

the District of Columbia, as defined in 

this section, that enters into a contract 

or provides assistance through loan, 

grant, loan guarantee or insurance, or 

otherwise, to a project subject to the 

Davis-Bacon labor standards. 

(2) [Reserved] 

Agency Head. The term ‘‘Agency 

Head’’ means the principal official of an 

agency and includes those persons duly 

authorized to act on behalf of the 

Agency Head. 

Apprentice and helper. The terms 

‘‘apprentice’’ and ‘‘helper’’ are defined 

as follows: 

(1) ‘‘Apprentice’’ means: 

(i) A person employed and 

individually registered in a bona fide 

apprenticeship program registered with 

the U.S. Department of Labor, 

Employment and Training 

Administration, Office of 

Apprenticeship, or with a State 

Apprenticeship Agency recognized by 

the Office of Apprenticeship; or 

(ii) A person in the first 90 days of 

probationary employment as an 

apprentice in such an apprenticeship 

program, who is not individually 

registered in the program, but who has 

been certified by the Office of 

Apprenticeship or a State 

Apprenticeship Agency (where 

appropriate) to be eligible for 

probationary employment as an 

apprentice; 

(2) These provisions do not apply to 

apprentices and trainees employed on 

projects subject to 23 U.S.C. 113 who 

are enrolled in programs which have 

been certified by the Secretary of 

Transportation in accordance with 23 

U.S.C. 113(c). 

(3) A distinct classification of helper 

will be issued in wage determinations 

applicable to work performed on 

construction projects covered by the 

labor standards provisions of the DavisBacon and Related Acts only where: 

(i) The duties of the helper are clearly 

defined and distinct from those of any 

other classification on the wage 

determination; 

(ii) The use of such helpers is an 

established prevailing practice in the 

area; and 

(iii) The helper is not employed as a 

trainee in an informal training program. 

A helper classification will be added to 

wage determinations pursuant to 

§ 5.5(a)(1)(iii)(A) only where, in 

addition, the work to be performed by 

the helper is not performed by a 

classification in the wage determination. 

Building or work. The term ‘‘building 

or work’’ generally includes 

construction activities of all types, as 

distinguished from manufacturing, 

furnishing of materials, or servicing and 

maintenance work. The term includes, 

without limitation, buildings, 

structures, and improvements of all 

types, such as bridges, dams, solar 

panels, wind turbines, broadband 

installation, installation of electric car 

chargers, plants, highways, parkways, 

streets, subways, tunnels, sewers, 

mains, power lines, pumping stations, 

heavy generators, railways, airports, 

terminals, docks, piers, wharves, ways, 

lighthouses, buoys, jetties, breakwaters, 

levees, canals, dredging, shoring, 

rehabilitation and reactivation of plants, 

scaffolding, drilling, blasting, 

excavating, clearing, and landscaping. 

The term building or work also includes 

a portion of a building or work, or the 

installation (where appropriate) of 

equipment or components into a 

building or work. 

Construction, prosecution, 

completion, or repair. The term 

‘‘construction, prosecution, completion, 

or repair’’ means the following: 

(1) These terms include all types of 

work done— 

(i) On a particular building or work at 

the site of the work, as defined in this 

section, by laborers and mechanics 

employed by a contractor or 

subcontractor, or 


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(ii) In the construction or 

development of a project under a 

development statute. 

(2) These terms include, without 

limitation (except as specified in this 

definition): 

(i) Altering, remodeling, installation 

(where appropriate) on the site of the 

work of items fabricated off-site; 

(ii) Painting and decorating; 

(iii) Manufacturing or furnishing of 

materials, articles, supplies or 

equipment, but only if such work is 

done 

(A) On the site of the work, as defined 

in this section, or 

(B) In the construction or 

development of a project under a 

development statute; 

(iv) ‘‘Covered transportation’’ is 

defined as transportation under any of 

the following circumstances: 

(A) Transportation that takes place 

entirely within a location meeting the 

definition of ‘‘site of the work’’ in this 

section; 

(B) Transportation of portion(s) of the 

building or work between a ‘‘secondary 

construction site’’ as defined in this 

section and a ‘‘primary construction 

site’’ as defined in this section; 

(C) Transportation between a ‘‘nearby 

dedicated support site’’ as defined in 

this section and a ‘‘primary construction 

site’’ or ‘‘secondary construction site’’ as 

defined in this section; 

(D) ‘‘Onsite activities essential or 

incidental to offsite transportation’’— 

defined as activities conducted by a 

truck driver or truck driver’s assistant 

on the site of the work that are essential 

or incidental to the transportation of 

materials or supplies to or from the site 

of the work, such as loading, unloading, 

or waiting for materials to be loaded or 

unloaded—where the driver or driver’s 

assistant’s time spent on the site of the 

work is not so insubstantial or 

insignificant that it cannot as a practical 

administrative matter be precisely 

recorded; and 

(E) Any transportation and related 

activities, whether on or off the site of 

the work, by laborers and mechanics 

employed in the construction or 

development of the project under a 

development statute. 

(v) Demolition and/or removal, under 

any of the following circumstances: 

(A) Where the demolition and/or 

removal activities themselves constitute 

construction, alteration, and/or repair of 

an existing building or work. Examples 

of such activities include the removal of 

asbestos, paint, components, systems, or 

parts from a facility that will not be 

demolished; as well as contracts for 

hazardous waste removal, land 

recycling, or reclamation that involve 

substantial earth moving, removal of 

contaminated soil, re-contouring 

surfaces, and/or habitat restoration. 

(B) Where subsequent construction 

covered in whole or in part by the labor 

standards in this part is contemplated at 

the site of the demolition or removal, 

either as part of the same contract or as 

part of a future contract. In determining 

whether covered construction is 

contemplated within the meaning of 

this provision, relevant factors include, 

but are not limited to, the existence of 

engineering or architectural plans or 

surveys of the site; the allocation of, or 

an application for, Federal funds; 

contract negotiations or bid 

solicitations; the stated intent of the 

relevant government officials; and the 

disposition of the site after demolition. 

(C) Where otherwise required by 

statute. 

(3) Except for transportation that 

constitutes ‘‘covered transportation’’ as 

defined in this section, construction, 

prosecution, completion, or repair does 

not include the transportation of 

materials or supplies to or from the site 

of the work. 

Contract. The term ‘‘contract’’ means 

any prime contract which is subject 

wholly or in part to the labor standards 

provisions of any of the laws referenced 

by § 5.1 and any subcontract of any tier 

thereunder, let under the prime 

contract. 

Contracting Officer. The term 

‘‘Contracting Officer’’ means the 

individual, a duly appointed successor, 

or authorized representative who is 

designated and authorized to enter into 

contracts on behalf of an agency, 

sponsor, owner, applicant, or other 

similar entity. 

Contractor. The term ‘‘contractor’’ 

means any individual or other legal 

entity that enters into or is awarded a 

contract that is subject wholly or in part 

to the labor standards provisions of any 

of the laws referenced by § 5.1, 

including any prime contract or 

subcontract of any tier under a covered 

prime contract. In addition, the term 

contractor includes any surety that is 

completing performance for a defaulted 

contractor pursuant to a performance 

bond. The U.S. Government, its 

agencies, and instrumentalities are not 

contractors, subcontractors, employers 

or joint employers for purposes of the 

labor standards provisions of any of the 

laws referenced by § 5.1. A State or local 

government is not regarded as a 

contractor or subcontractor under 

statutes providing loans, grants, or other 

Federal assistance in situations where 

construction is performed by its own 

employees. However, under 

development statutes or other statutes 

requiring payment of prevailing wages 

to all laborers and mechanics employed 

on the assisted project, such as the U.S. 

Housing Act of 1937, State and local 

recipients of Federal-aid must pay these 

employees according to Davis-Bacon 

labor standards. The term ‘‘contractor’’ 

does not include an entity that is a 

material supplier, except if the entity is 

performing work under a development 

statute. 

Davis-Bacon labor standards. The 

term ‘‘Davis-Bacon labor standards’’ as 

used in this part means the 

requirements of the Davis-Bacon Act, 

the Contract Work Hours and Safety 

Standards Act (other than those relating 

to safety and health), the Copeland Act, 

and the prevailing wage provisions of 

the other statutes referenced in § 5.1, 

and the regulations in parts 1 and 3 of 

this subtitle and this part. 

Development statute. The term 

‘‘development statute’’ means a statute 

that requires payment of prevailing 

wages under the Davis-Bacon labor 

standards to all laborers and mechanics 

employed in the development of a 

project. 

Employed. Every person performing 

the duties of a laborer or mechanic in 

the construction, prosecution, 

completion, or repair of a public 

building or public work, or building or 

work financed in whole or in part by 

assistance from the United States 

through loan, grant, loan guarantee or 

insurance, or otherwise, is ‘‘employed’’ 

regardless of any contractual 

relationship alleged to exist between the 

contractor and such person. 

Laborer or mechanic. The term 

‘‘laborer or mechanic’’ includes at least 

those workers whose duties are manual 

or physical in nature (including those 

workers who use tools or who are 

performing the work of a trade), as 

distinguished from mental or 

managerial. The term ‘‘laborer’’ or 

‘‘mechanic’’ includes apprentices, 

helpers, and, in the case of contracts 

subject to the Contract Work Hours and 

Safety Standards Act, watchmen or 

guards. The term does not apply to 

workers whose duties are primarily 

administrative, executive, or clerical, 

rather than manual. Persons employed 

in a bona fide executive, administrative, 

or professional capacity as defined in 29 

CFR part 541 are not deemed to be 

laborers or mechanics. Working 

supervisors who devote more than 20 

percent of their time during a workweek 

to mechanic or laborer duties, and who 

do not meet the criteria of part 541, are 

laborers and mechanics for the time so 

spent. 

Material supplier. The term ‘‘material 

supplier’’ is defined as follows: 


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(1) A material supplier is an entity 

meeting all of the following criteria: 

(i) Its only obligations for work on the 

contract or project are the delivery of 

materials, articles, supplies, or 

equipment, which may include pickup 

of the same in addition to, but not 

exclusive of, delivery; 

(ii) It also supplies materials, articles, 

supplies, or equipment to the general 

public; and 

(iii) Its facility manufacturing the 

materials, articles, supplies, or 

equipment, if any, is neither established 

specifically for the contract or project 

nor located at the site of the work. 

(2) If an entity, in addition to being 

engaged in the activities specified in 

paragraph (1)(i) of this definition, also 

engages in other construction, 

prosecution, completion, or repair work 

at the site of the work, it is not a 

material supplier. 

Prime contractor. The term ‘‘prime 

contractor’’ means any person or entity 

that enters into a contract with an 

agency. For the purposes of the labor 

standards provisions of any of the laws 

referenced by § 5.1, the term prime 

contractor also includes the controlling 

shareholders or members of any entity 

holding a prime contract, the joint 

venturers or partners in any joint 

venture or partnership holding a prime 

contract, any contractor (e.g., a general 

contractor) that has been delegated all or 

substantially all of the responsibilities 

for overseeing any construction 

anticipated by the prime contract, and 

any other person or entity that has been 

delegated all or substantially all of the 

responsibility for overseeing DavisBacon labor standards compliance on a 

prime contract. For the purposes of the 

cross-withholding provisions in § 5.5, 

any such related entities holding 

different prime contracts are considered 

to be the same prime contractor. 

Public building or public work. The 

term ‘‘public building’’ or ‘‘public 

work’’ includes a building or work, the 

construction, prosecution, completion, 

or repair of which, as defined in this 

section, is carried on directly by 

authority of or with funds of a Federal 

agency to serve the interest of the 

general public regardless of whether 

title thereof is in a Federal agency. The 

construction, prosecution, completion, 

or repair of a portion of a building or 

work may still be considered a public 

building or work, even where the entire 

building or work is not owned, leased 

by, or to be used by a Federal agency, 

as long as the construction, prosecution, 

completion, or repair of that portion of 

the building or work is carried on by 

authority of or with funds of a Federal 

agency to serve the interest of the 

general public. 

Secretary. The term ‘‘Secretary’’ 

includes the Secretary of Labor, or 

authorized representative. 

Site of the work. The term ‘‘site of the 

work’’ is defined as follows: 

(1) ‘‘Site of the work’’ includes all of 

the following: 

(i) The primary construction site(s), 

defined as the physical place or places 

where the building or work called for in 

the contract will remain. 

(ii) Any secondary construction 

site(s), defined as any other site(s) 

where a significant portion of the 

building or work is constructed, 

provided that such construction is for 

specific use in that building or work and 

does not simply reflect the manufacture 

or construction of a product made 

available to the general public. A 

‘‘significant portion’’ of a building or 

work means one or more entire 

portion(s) or module(s) of the building 

or work, as opposed to smaller 

prefabricated components, with 

minimal construction work remaining 

other than the installation and/or 

assembly of the portions or modules at 

the place where the building or work 

will remain. 

(iii) Any nearby dedicated support 

sites, defined as: 

(A) Job headquarters, tool yards, batch 

plants, borrow pits, and similar facilities 

that are dedicated exclusively, or nearly 

so, to performance of the contract or 

project, and adjacent or virtually 

adjacent to either a primary 

construction site or a secondary 

construction site, and 

(B) Locations adjacent or virtually 

adjacent to a primary construction site 

at which workers perform activities 

associated with directing vehicular or 

pedestrian traffic around or away from 

the primary construction site. 

(2) With the exception of locations 

that are secondary construction sites as 

defined in paragraph (1)(ii) of this 

definition, site of the work does not 

include: 

(i) Permanent home offices, branch 

plant establishments, fabrication plants, 

tool yards, etc., of a contractor or 

subcontractor whose location and 

continuance in operation are 

determined wholly without regard to a 

particular Federal or federally assisted 

contract or project; or 

(ii) Fabrication plants, batch plants, 

borrow pits, job headquarters, tool 

yards, etc., of a material supplier, which 

are established by a material supplier 

for the project before opening of bids 

and not on the physical place or places 

where the building or work called for in 

the contract will remain, even where the 

operations for a period of time may be 

dedicated exclusively, or nearly so, to 

the performance of a contract. 

Subcontractor. The term 

‘‘subcontractor’’ means any contractor 

that agrees to perform or be responsible 

for the performance of any part of a 

contract that is subject wholly or in part 

to the labor standards provisions of any 

of the laws referenced in § 5.1. The term 

subcontractor includes subcontractors of 

any tier, but does not include the 

ordinary laborers or mechanics to whom 

a prevailing wage must be paid 

regardless of any contractual 

relationship which may be alleged to 

exist between the contractor or 

subcontractor and the laborers and 

mechanics. 

United States or the District of 

Columbia. The term ‘‘United States or 

the District of Columbia’’ means the 

United States, the District of Columbia, 

and all executive departments, 

independent establishments, 

administrative agencies, and 

instrumentalities of the United States 

and of the District of Columbia, 

including non-appropriated fund 

instrumentalities and any corporation 

for which all or substantially all of its 

stock is beneficially owned by the 

United States or by the foregoing 

departments, establishments, agencies, 

or instrumentalities. 

Wages. The term ‘‘wages’’ means the 

basic hourly rate of pay; any 

contribution irrevocably made by a 

contractor or subcontractor to a trustee 

or to a third person pursuant to a bona 

fide fringe benefit fund, plan, or 

program; and the rate of costs to the 

contractor or subcontractor which may 

be reasonably anticipated in providing 

bona fide fringe benefits to laborers and 

mechanics pursuant to an enforceable 

commitment to carry out a financially 

responsible plan or program, which was 

communicated in writing to the laborers 

and mechanics affected. The fringe 

benefits enumerated in the Davis-Bacon 

Act include medical or hospital care, 

pensions on retirement or death, 

compensation for injuries or illness 

resulting from occupational activity, or 

insurance to provide any of the 

foregoing; unemployment benefits; life 

insurance, disability insurance, sickness 

insurance, or accident insurance; 

vacation or holiday pay; defraying costs 

of apprenticeship or other similar 

programs; or other bona fide fringe 

benefits. Fringe benefits do not include 

benefits required by other Federal, State, 

or local law. 

Wage determination. The term ‘‘wage 

determination’’ includes the original 

decision and any subsequent decisions 

revising, modifying, superseding, 


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correcting, or otherwise changing the 

provisions of the original decision. The 

application of the wage determination 

shall be in accordance with the 

provisions of § 1.6 of this subtitle. 

■ 25. Amend § 5.5 by: 

■ a. Revising paragraphs (a) 

introductory text and (a)(1) through (4), 

(6), and (10); 

■ b. Adding paragraph (a)(11); 

■ c. Revising paragraphs (b)(2) through 

(4); 

■ d. Adding paragraph (b)(5); 

■ e. Revising paragraph (c); and 

■ f. Adding paragraphs (d) and (e). 

The revisions and additions read as 

follows: 

§ 5.5 Contract provisions and related 

matters. 

(a) Required contract clauses. The 

Agency head will cause or require the 

contracting officer to insert in full in 

any contract in excess of $2,000 which 

is entered into for the actual 

construction, alteration and/or repair, 

including painting and decorating, of a 

public building or public work, or 

building or work financed in whole or 

in part from Federal funds or in 

accordance with guarantees of a Federal 

agency or financed from funds obtained 

by pledge of any contract of a Federal 

agency to make a loan, grant or annual 

contribution (except where a different 

meaning is expressly indicated), and 

which is subject to the labor standards 

provisions of any of the laws referenced 

by § 5.1, the following clauses (or any 

modifications thereof to meet the 

particular needs of the agency, 

Provided, That such modifications are 

first approved by the Department of 

Labor): 

(1) Minimum wages—(i) Wage rates 

and fringe benefits. All laborers and 

mechanics employed or working upon 

the site of the work (or otherwise 

working in construction or development 

of the project under a development 

statute), will be paid unconditionally 

and not less often than once a week, and 

without subsequent deduction or rebate 

on any account (except such payroll 

deductions as are permitted by 

regulations issued by the Secretary of 

Labor under the Copeland Act (part 3 of 

this subtitle)), the full amount of basic 

hourly wages and bona fide fringe 

benefits (or cash equivalents thereof) 

due at time of payment computed at 

rates not less than those contained in 

the wage determination of the Secretary 

of Labor which is attached hereto and 

made a part hereof, regardless of any 

contractual relationship which may be 

alleged to exist between the contractor 

and such laborers and mechanics. As 

provided in paragraphs (d) and (e) of 

this section, the appropriate wage 

determinations are effective by 

operation of law even if they have not 

been attached to the contract. 

Contributions made or costs reasonably 

anticipated for bona fide fringe benefits 

under the Davis-Bacon Act (40 U.S.C. 

3141(2)(B)) on behalf of laborers or 

mechanics are considered wages paid to 

such laborers or mechanics, subject to 

the provisions of paragraph (a)(1)(v) of 

this section; also, regular contributions 

made or costs incurred for more than a 

weekly period (but not less often than 

quarterly) under plans, funds, or 

programs which cover the particular 

weekly period, are deemed to be 

constructively made or incurred during 

such weekly period. Such laborers and 

mechanics must be paid the appropriate 

wage rate and fringe benefits on the 

wage determination for the 

classification(s) of work actually 

performed, without regard to skill, 

except as provided in paragraph (a)(4) of 

this section. Laborers or mechanics 

performing work in more than one 

classification may be compensated at 

the rate specified for each classification 

for the time actually worked therein: 

Provided, That the employer’s payroll 

records accurately set forth the time 

spent in each classification in which 

work is performed. The wage 

determination (including any additional 

classifications and wage rates 

conformed under paragraph (a)(1)(iii) of 

this section) and the Davis-Bacon poster 

(WH–1321) must be posted at all times 

by the contractor and its subcontractors 

at the site of the work in a prominent 

and accessible place where it can be 

easily seen by the workers. 

(ii) Frequently recurring 

classifications. (A) In addition to wage 

and fringe benefit rates that have been 

determined to be prevailing under the 

procedures set forth in part 1 of this 

subtitle, a wage determination may 

contain, pursuant to § 1.3(f), wage and 

fringe benefit rates for classifications of 

laborers and mechanics for which 

conformance requests are regularly 

submitted pursuant to paragraph 

(a)(1)(iii) of this section, provided that: 

(1) The work performed by the 

classification is not performed by a 

classification in the wage determination 

for which a prevailing wage rate has 

been determined; 

(2) The classification is used in the 

area by the construction industry; and 

(3) The wage rate for the classification 

bears a reasonable relationship to the 

prevailing wage rates contained in the 

wage determination. 

(B) The Administrator will establish 

wage rates for such classifications in 

accordance with paragraph 

(a)(1)(iii)(A)(3) of this section. Work 

performed in such a classification must 

be paid at no less than the wage and 

fringe benefit rate listed on the wage 

determination for such classification. 

(iii) Conformance. (A) The contracting 

officer must require that any class of 

laborers or mechanics, including 

helpers, which is not listed in the wage 

determination and which is to be 

employed under the contract be 

classified in conformance with the wage 

determination. Conformance of an 

additional classification and wage rate 

and fringe benefits is appropriate only 

when the following criteria have been 

met: 

(1) The work to be performed by the 

classification requested is not performed 

by a classification in the wage 

determination; and 

(2) The classification is used in the 

area by the construction industry; and 

(3) The proposed wage rate, including 

any bona fide fringe benefits, bears a 

reasonable relationship to the wage rates 

contained in the wage determination. 

(B) The conformance process may not 

be used to split, subdivide, or otherwise 

avoid application of classifications 

listed in the wage determination. 

(C) If the contractor and the laborers 

and mechanics to be employed in the 

classification (if known), or their 

representatives, and the contracting 

officer agree on the classification and 

wage rate (including the amount 

designated for fringe benefits where 

appropriate), a report of the action taken 

will be sent by the contracting officer by 

email to DBAconformance@dol.gov. The 

Administrator, or an authorized 

representative, will approve, modify, or 

disapprove every additional 

classification action within 30 days of 

receipt and so advise the contracting 

officer or will notify the contracting 

officer within the 30–day period that 

additional time is necessary. 

(D) In the event the contractor, the 

laborers or mechanics to be employed in 

the classification or their 

representatives, and the contracting 

officer do not agree on the proposed 

classification and wage rate (including 

the amount designated for fringe 

benefits, where appropriate), the 

contracting officer will, by email to 

DBAconformance@dol.gov, refer the 

questions, including the views of all 

interested parties and the 

recommendation of the contracting 

officer, to the Administrator for 

determination. The Administrator, or an 

authorized representative, will issue a 

determination within 30 days of receipt 

and so advise the contracting officer or 

will notify the contracting officer within 


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the 30–day period that additional time 

is necessary. 

(E) The contracting officer must 

promptly notify the contractor of the 

action taken by the Wage and Hour 

Division under paragraphs (a)(1)(iii)(C) 

and (D) of this section. The contractor 

must furnish a written copy of such 

determination to each affected worker or 

it must be posted as a part of the wage 

determination. The wage rate (including 

fringe benefits where appropriate) 

determined pursuant to paragraph 

(a)(1)(iii)(C) or (D) must be paid to all 

workers performing work in the 

classification under this contract from 

the first day on which work is 

performed in the classification. 

(iv) Fringe benefits not expressed as 

an hourly rate. Whenever the minimum 

wage rate prescribed in the contract for 

a class of laborers or mechanics 

includes a fringe benefit which is not 

expressed as an hourly rate, the 

contractor may either pay the benefit as 

stated in the wage determination or may 

pay another bona fide fringe benefit or 

an hourly cash equivalent thereof. 

(v) Unfunded plans. If the contractor 

does not make payments to a trustee or 

other third person, the contractor may 

consider as part of the wages of any 

laborer or mechanic the amount of any 

costs reasonably anticipated in 

providing bona fide fringe benefits 

under a plan or program, Provided, That 

the Secretary of Labor has found, upon 

the written request of the contractor, in 

accordance with the criteria set forth in 

§ 5.28, that the applicable standards of 

the Davis-Bacon Act have been met. The 

Secretary of Labor may require the 

contractor to set aside in a separate 

account assets for the meeting of 

obligations under the plan or program. 

(vi) Interest. In the event of a failure 

to pay all or part of the wages required 

by the contract, the contractor will be 

required to pay interest on any 

underpayment of wages. 

(2) Withholding—(i) Withholding 

requirements. The (write in name of 

Federal agency or the loan or grant 

recipient) must, upon its own action or 

upon written request of an authorized 

representative of the Department of 

Labor, withhold or cause to be withheld 

from the contractor under this contract 

so much of the accrued payments or 

advances as may be considered 

necessary to satisfy the liabilities of the 

prime contractor or any subcontractor 

for the full amount of wages required by 

the clause set forth in paragraph (a)(1) 

of this section and monetary relief for 

violations of paragraph (a)(11) of this 

section of this contract, including 

interest, or to satisfy any such liabilities 

required by any other Federal contract, 

or federally assisted contract subject to 

Davis-Bacon labor standards, that is 

held by the same prime contractor (as 

defined in § 5.2). The necessary funds 

may be withheld from the contractor 

under this contract or any other Federal 

contract with the same prime contractor, 

or any other federally assisted contract 

that is subject to Davis-Bacon prevailing 

wage requirements and is held by the 

same prime contractor, regardless of 

whether the other contract was awarded 

or assisted by the same agency. In the 

event of a contractor’s failure to pay any 

laborer or mechanic, including any 

apprentice or helper working on the site 

of the work (or otherwise working in 

construction or development of the 

project under a development statute) all 

or part of the wages required by the 

contract, or upon the contractor’s failure 

to submit the required records as 

discussed in paragraph (a)(3)(iv) of this 

section, the (Agency) may on its own 

initiative and after written notice to the 

contractor, sponsor, applicant, owner, or 

other entity, as the case may be, take 

such action as may be necessary to 

cause the suspension of any further 

payment, advance, or guarantee of funds 

until such violations have ceased. 

(ii) Priority to withheld funds. The 

Department has priority to funds 

withheld or to be withheld in 

accordance with paragraph (a)(2)(i) or 

(b)(3)(i) of this section, or both, over 

claims to those funds by: 

(A) A contractor’s surety(ies), 

including without limitation 

performance bond sureties and payment 

bond sureties; 

(B) A contracting agency for its 

reprocurement costs; 

(C) A trustee(s) (either a courtappointed trustee or a U.S. trustee, or 

both) in bankruptcy of a contractor, or 

a contractor’s bankruptcy estate; 

(D) A contractor’s assignee(s); 

(E) A contractor’s successor(s); or 

(F) A claim asserted under the Prompt 

Payment Act, 31 U.S.C. 3901–3907. 

(3) Records and certified payrolls—(i) 

Basic record requirements—(A) Length 

of record retention. All regular payrolls 

and other basic records must be 

maintained by the contractor and any 

subcontractor during the course of the 

work and preserved for all laborers and 

mechanics working at the site of the 

work (or otherwise working in 

construction or development of the 

project under a development statute) for 

a period of at least 3 years after all the 

work on the prime contract is 

completed. 

(B) Information required. Such 

records must contain the name; Social 

Security number; last known address, 

telephone number, and email address of 

each such worker; each worker’s correct 

classification(s) of work actually 

performed; hourly rates of wages paid 

(including rates of contributions or costs 

anticipated for bona fide fringe benefits 

or cash equivalents thereof of the types 

described in 40 U.S.C. 3141(2)(B) of the 

Davis-Bacon Act); daily and weekly 

number of hours actually worked in 

total and on each covered contract; 

deductions made; and actual wages 

paid. 

(C) Additional records relating to 

fringe benefits. Whenever the Secretary 

of Labor has found under paragraph 

(a)(1)(v) of this section that the wages of 

any laborer or mechanic include the 

amount of any costs reasonably 

anticipated in providing benefits under 

a plan or program described in 40 U.S.C. 

3141(2)(B) of the Davis-Bacon Act, the 

contractor must maintain records which 

show that the commitment to provide 

such benefits is enforceable, that the 

plan or program is financially 

responsible, and that the plan or 

program has been communicated in 

writing to the laborers or mechanics 

affected, and records which show the 

costs anticipated or the actual cost 

incurred in providing such benefits. 

(D) Additional records relating to 

apprenticeship. Contractors with 

apprentices working under approved 

programs must maintain written 

evidence of the registration of 

apprenticeship programs, the 

registration of the apprentices, and the 

ratios and wage rates prescribed in the 

applicable programs. 

(ii) Certified payroll requirements— 

(A) Frequency and method of 

submission. The contractor or 

subcontractor must submit weekly for 

each week in which any DBA- or 

Related Acts-covered work is performed 

certified payrolls to the (write in name 

of appropriate Federal agency) if the 

agency is a party to the contract, but if 

the agency is not such a party, the 

contractor will submit the certified 

payrolls to the applicant, sponsor, 

owner, or other entity, as the case may 

be, that maintains such records, for 

transmission to the (write in name of 

agency). The prime contractor is 

responsible for the submission of copies 

of certified payrolls by all 

subcontractors. A contracting agency or 

prime contractor may permit or require 

contractors to submit certified payrolls 

through an electronic system, as long as 

the electronic system requires a legally 

valid electronic signature and the 

contracting agency or prime contractor 

permits other methods of submission in 

situations where the contractor is 

unable or limited in its ability to use or 

access the electronic system. 


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(B) Information required. The certified 

payrolls submitted must set out 

accurately and completely all of the 

information required to be maintained 

under paragraph (a)(3)(i) of this section, 

except that full Social Security numbers 

and last known addresses, telephone 

numbers, and email addresses must not 

be included on weekly transmittals. 

Instead the payrolls need only include 

an individually identifying number for 

each worker (e.g., the last four digits of 

the worker’s Social Security number). 

The required weekly certified payroll 

information may be submitted using 

Optional Form WH–347, or in any other 

format desired. Optional Form WH–347 

is available for this purpose from the 

Wage and Hour Division website at 

https://www.dol.gov/files/WHD/legacy/ 

files/wh347.pdf or its successor site. It is 

not a violation of this section for a 

prime contractor to require a 

subcontractor to provide full Social 

Security numbers and last known 

addresses, telephone numbers, and 

email addresses to the prime contractor 

for its own records, without weekly 

submission by the subcontractor to the 

sponsoring government agency (or the 

applicant, sponsor, owner, or other 

entity, as the case may be, that 

maintains such records). 

(C) Statement of Compliance. Each 

certified payroll submitted must be 

accompanied by a ‘‘Statement of 

Compliance,’’ signed by the contractor 

or subcontractor, or the contractor’s or 

subcontractor’s agent who pays or 

supervises the payment of the persons 

working on the contract, and must 

certify the following: 

(1) That the certified payroll for the 

payroll period contains the information 

required to be provided under 

paragraph (a)(3)(ii) of this section, the 

appropriate information and basic 

records are being maintained under 

paragraph (a)(3)(i) of this section, and 

such information and records are correct 

and complete; 

(2) That each laborer or mechanic 

(including each helper and apprentice) 

working on the contract during the 

payroll period has been paid the full 

weekly wages earned, without rebate, 

either directly or indirectly, and that no 

deductions have been made either 

directly or indirectly from the full wages 

earned, other than permissible 

deductions as set forth in part 3 of this 

subtitle; and 

(3) That each laborer or mechanic has 

been paid not less than the applicable 

wage rates and fringe benefits or cash 

equivalents for the classification(s) of 

work actually performed, as specified in 

the applicable wage determination 

incorporated into the contract. 

(D) Use of Optional Form WH–347. 

The weekly submission of a properly 

executed certification set forth on the 

reverse side of Optional Form WH–347 

will satisfy the requirement for 

submission of the ‘‘Statement of 

Compliance’’ required by paragraph 

(a)(3)(ii)(C) of this section. 

(E) Signature. The signature by the 

contractor, subcontractor, or the 

contractor’s or subcontractor’s agent, 

must be an original handwritten 

signature or a legally valid electronic 

signature. 

(F) Falsification. The falsification of 

any of the above certifications may 

subject the contractor or subcontractor 

to civil or criminal prosecution under 

18 U.S.C. 1001 and 31 U.S.C. 3729. 

(iii) Contracts, subcontracts, and 

related documents. The contractor or 

subcontractor must maintain this 

contract or subcontract, and related 

documents including, without 

limitation, bids, proposals, 

amendments, modifications, and 

extensions. The contractor or 

subcontractor must preserve these 

contracts, subcontracts, and related 

documents during the course of the 

work and for a period of 3 years after all 

the work on the prime contract is 

completed. 

(iv) Required disclosures and access— 

(A) Required record disclosures and 

access to workers. The contractor or 

subcontractor must make the records 

required under paragraphs (a)(3)(i) 

through (iii) of this section and any 

other documents that the (write the 

name of the agency) or the Department 

of Labor deems necessary to determine 

compliance with the labor standards 

provisions of any of the applicable 

statutes referenced by § 5.1, available for 

inspection, copying, or transcription by 

authorized representatives of the (write 

the name of the agency) or the 

Department of Labor, and must permit 

such representatives to interview 

workers during working hours on the 

job. 

(B) Sanctions for non-compliance 

with records and worker access 

requirements. If the contractor or 

subcontractor fails to submit the 

required records or to make them 

available, or to permit worker 

interviews during working hours on the 

job, the Federal agency may, after 

written notice to the contractor, 

sponsor, applicant, owner, or other 

entity, as the case may be, that 

maintains such records or that employs 

such workers, take such action as may 

be necessary to cause the suspension of 

any further payment, advance, or 

guarantee of funds. Furthermore, failure 

to submit the required records upon 

request or to make such records 

available, or to permit worker 

interviews during worker hours on the 

job, may be grounds for debarment 

action pursuant to § 5.12. In addition, 

any contractor or other person that fails 

to submit the required records or make 

those records available to WHD within 

the time WHD requests that the records 

be produced, will be precluded from 

introducing as evidence in an 

administrative proceeding under part 6 

of this subtitle any of the required 

records that were not provided or made 

available to WHD. WHD will take into 

consideration a reasonable request from 

the contractor or person for an extension 

of the time for submission of records. 

WHD will determine the reasonableness 

of the request and may consider, among 

other things, the location of the records 

and the volume of production. 

(C) Required information disclosures. 

Contractors and subcontractors must 

maintain the full Social Security 

number and last known address, 

telephone number, and email address of 

each covered worker, and must provide 

them upon request to the (write in name 

of appropriate Federal agency) if the 

agency is a party to the contract, or to 

the Wage and Hour Division of the 

Department of Labor. If the Federal 

agency is not such a party to the 

contract, the contractor or 

subcontractor, or both, must upon 

request provide the full Social Security 

number and last known address, 

telephone number, and email address of 

each covered worker to the applicant, 

sponsor, owner, or other entity, as the 

case may be, that maintains such 

records, for transmission to the (write in 

name of agency), the contractor, or the 

Wage and Hour Division of the 

Department of Labor for purposes of an 

investigation or other compliance 

action. 

(4) Apprentices and equal 

employment opportunity —(i) 

Apprentices—(A) Rate of pay. 

Apprentices will be permitted to work 

at less than the predetermined rate for 

the work they perform when they are 

employed pursuant to and individually 

registered in a bona fide apprenticeship 

program registered with the U.S. 

Department of Labor, Employment and 

Training Administration, Office of 

Apprenticeship (OA), or with a State 

Apprenticeship Agency recognized by 

the OA. A person who is not 

individually registered in the program, 

but who has been certified by the OA or 

a State Apprenticeship Agency (where 

appropriate) to be eligible for 

probationary employment as an 

apprentice, will be permitted to work at 

less than the predetermined rate for the 


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work they perform in the first 90 days 

of probationary employment as an 

apprentice in such a program. In the 

event the OA or a State Apprenticeship 

Agency recognized by the OA 

withdraws approval of an 

apprenticeship program, the contractor 

will no longer be permitted to use 

apprentices at less than the applicable 

predetermined rate for the work 

performed until an acceptable program 

is approved. 

(B) Fringe benefits. Apprentices must 

be paid fringe benefits in accordance 

with the provisions of the 

apprenticeship program. If the 

apprenticeship program does not 

specify fringe benefits, apprentices must 

be paid the full amount of fringe 

benefits listed on the wage 

determination for the applicable 

classification. If the Administrator 

determines that a different practice 

prevails for the applicable apprentice 

classification, fringe benefits must be 

paid in accordance with that 

determination. 

(C) Apprenticeship ratio. The 

allowable ratio of apprentices to 

journeyworkers on the job site in any 

craft classification must not be greater 

than the ratio permitted to the 

contractor as to the entire work force 

under the registered program. Any 

worker listed on a payroll at an 

apprentice wage rate, who is not 

registered or otherwise employed as 

stated above, must be paid not less than 

the applicable wage rate on the wage 

determination for the classification of 

work actually performed. In addition, 

any apprentice performing work on the 

job site in excess of the ratio permitted 

under the registered program must be 

paid not less than the applicable wage 

rate on the wage determination for the 

work actually performed. 

(D) Reciprocity of ratios and wage 

rates. Where a contractor is performing 

construction on a project in a locality 

other than the locality in which its 

program is registered, the ratios and 

wage rates (expressed in percentages of 

the journeyworker’s hourly rate) 

applicable within the locality in which 

the construction is being performed 

must be observed. Every apprentice 

must be paid at not less than the rate 

specified in the registered program for 

the apprentice’s level of progress, 

expressed as a percentage of the 

journeyworker hourly rate specified in 

the applicable wage determination. 

(ii) Equal employment opportunity. 

The use of apprentices and 

journeyworkers under this part shall be 

in conformity with the equal 

employment opportunity requirements 

of Executive Order 11246, as amended, 

and 29 CFR part 30. 

* * * * * 

(6) Subcontracts. The contractor or 

subcontractor must insert in any 

subcontracts the clauses contained in 

paragraphs (a)(1) through (11) of this 

section, along with the applicable wage 

determination(s) and such other clauses 

as the (write in the name of the Federal 

agency) may by appropriate instructions 

require, and also a clause requiring the 

subcontractors to include these clauses 

and wage determination(s) in any lower 

tier subcontracts. The prime contractor 

is responsible for the compliance by any 

subcontractor or lower tier 

subcontractor with all the contract 

clauses in this section. In the event of 

any violations of these clauses, the 

prime contractor and any 

subcontractor(s) responsible will be 

liable for any unpaid wages and 

monetary relief, including interest from 

the date of the underpayment or loss, 

due to any workers of lower-tier 

subcontractors, and may be subject to 

debarment, as appropriate. 

* * * * * 

(10) Certification of eligibility. (i) By 

entering into this contract, the 

contractor certifies that neither it nor 

any person or firm who has an interest 

in the contractor’s firm is a person or 

firm ineligible to be awarded 

Government contracts by virtue of 40 

U.S.C. 3144(b) or § 5.12(a) or (b). 

(ii) No part of this contract shall be 

subcontracted to any person or firm 

ineligible for award of a Government 

contract by virtue of 40 U.S.C. 3144(b) 

or § 5.12(a) or (b). 

(iii) The penalty for making false 

statements is prescribed in the U.S. 

Code, Title 18 Crimes and Criminal 

Procedure, 18 U.S.C. 1001. 

(11) Anti-retaliation. It is unlawful for 

any person to discharge, demote, 

intimidate, threaten, restrain, coerce, 

blacklist, harass, or in any other manner 

discriminate against, or to cause any 

person to discharge, demote, intimidate, 

threaten, restrain, coerce, blacklist, 

harass, or in any other manner 

discriminate against, any worker or job 

applicant for: 

(i) Notifying any contractor of any 

conduct which the worker reasonably 

believes constitutes a violation of the 

DBA, Related Acts, this part, or part 1 

or 3 this subtitle; 

(ii) Filing any complaint, initiating or 

causing to be initiated any proceeding, 

or otherwise asserting on behalf of 

themselves or others any right or 

protection under the DBA, Related Acts, 

this part, or part 1 or 3 of this subtitle; 

(iii) Cooperating in any investigation 

or other compliance action, or testifying 

in any proceeding under the DBA, 

Related Acts, this part, or part 1 or 3 of 

this subtitle; or 

(iv) Informing any other person about 

their rights under the DBA, Related 

Acts, this part, or part 1 or 3 of this 

subtitle. 

(b) * * * 

(2) Violation; liability for unpaid 

wages; liquidated damages. In the event 

of any violation of the clause set forth 

in paragraph (b)(1) of this section the 

contractor and any subcontractor 

responsible therefor shall be liable for 

the unpaid wages and interest from the 

date of the underpayment. In addition, 

such contractor and subcontractor shall 

be liable to the United States (in the 

case of work done under contract for the 

District of Columbia or a territory, to 

such District or to such territory), for 

liquidated damages. Such liquidated 

damages shall be computed with respect 

to each individual laborer or mechanic, 

including watchmen and guards, 

employed in violation of the clause set 

forth in paragraph (b)(1), in the sum of 

$29 for each calendar day on which 

such individual was required or 

permitted to work in excess of the 

standard workweek of forty hours 

without payment of the overtime wages 

required by the clause set forth in 

paragraph (b)(1). 

(3) Withholding for unpaid wages and 

liquidated damages—(i) Withholding 

process. The (write in the name of the 

Federal agency or the loan or grant 

recipient) must, upon its own action or 

upon written request of an authorized 

representative of the Department of 

Labor, withhold or cause to be withheld 

from the contractor under this contract 

so much of the accrued payments or 

advances as may be considered 

necessary to satisfy the liabilities of the 

prime contractor or any subcontractor 

for unpaid wages and monetary relief, 

including interest, required by the 

clauses set forth in paragraphs (b)(2) and 

(5) of this section and liquidated 

damages for violations of paragraph 

(b)(2) of this section or to satisfy any 

such liabilities required by any other 

Federal contract, or federally assisted 

contract subject to Davis-Bacon 

prevailing wage requirements, that is 

held by the same prime contractor (as 

defined in § 5.2). The necessary funds 

may be withheld from the contractor 

under this contract or any other Federal 

contract with the same prime contractor, 

or any other federally assisted contract 

that is subject to Davis-Bacon prevailing 

wage requirements and is held by the 

same prime contractor, regardless of 

whether the other contract was awarded 

or assisted by the same agency. 


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(ii) Priority to withheld funds. The 

Department has priority to funds 

withheld or to be withheld in 

accordance with paragraph (a)(2)(i) or 

(b)(3)(i) of this section, or both, over 

claims to those funds by: 

(A) A contractor’s surety(ies), 

including without limitation 

performance bond sureties and payment 

bond sureties; 

(B) A contracting agency for its 

reprocurement costs; 

(C) A trustee(s) (either a courtappointed trustee or a U.S. trustee, or 

both) in bankruptcy of a contractor, or 

a contractor’s bankruptcy estate; 

(D) A contractor’s assignee(s); 

(E) A contractor’s successor(s); or 

(F) A claim asserted under the Prompt 

Payment Act, 31 U.S.C. 3901–3907. 

(4) Subcontracts. The contractor or 

subcontractor must insert in any 

subcontracts the clauses set forth in 

paragraphs (b)(1) through (5) of this 

section and also a clause requiring the 

subcontractors to include these clauses 

in any lower tier subcontracts. The 

prime contractor is responsible for 

compliance by any subcontractor or 

lower tier subcontractor with the 

clauses set forth in paragraphs (b)(1) 

through (5). In the event of any 

violations of these clauses, the prime 

contractor and any subcontractor(s) 

responsible will be liable for any unpaid 

wages and monetary relief, including 

interest from the date of the 

underpayment or loss, due to any 

workers of lower-tier subcontractors, 

and associated liquidated damages, and 

may be subject to debarment, as 

appropriate. 

(5) Anti-retaliation. It is unlawful for 

any person to discharge, demote, 

intimidate, threaten, restrain, coerce, 

blacklist, harass, or in any other manner 

discriminate against, or to cause any 

person to discharge, demote, intimidate, 

threaten, restrain, coerce, blacklist, 

harass, or in any other manner 

discriminate against, any worker or job 

applicant for: 

(i) Notifying any contractor of any 

conduct which the worker reasonably 

believes constitutes a violation of the 

Contract Work Hours and Safety 

Standards Act (CWHSSA) or its 

implementing regulations in this part; 

(ii) Filing any complaint, initiating or 

causing to be initiated any proceeding, 

or otherwise asserting on behalf of 

themselves or others any right or 

protection under CWHSSA or part 5 of 

this title; 

(iii) Cooperating in any investigation 

or other compliance action, or testifying 

in any proceeding under CWHSSA or 

this part; or 

(iv) Informing any other person about 

their rights under CWHSSA or this part. 

(c) CWHSSA payroll records clause. 

In addition to the clauses contained in 

paragraph (b) of this section, in any 

contract subject only to the Contract 

Work Hours and Safety Standards Act 

and not to any of the other laws 

referenced by § 5.1, the Agency Head 

must cause or require the contracting 

officer to insert a clause requiring that 

the contractor or subcontractor must 

maintain payrolls and basic payroll 

records during the course of the work 

and must preserve them for a period of 

3 years after all the work on the prime 

contract is completed for all laborers 

and mechanics, including guards and 

watchmen, working on the contract. 

Such records must contain the name; 

last known address, telephone number, 

and email address; and social security 

number of each such worker; each 

worker’s correct classification(s) of work 

actually performed; hourly rates of 

wages paid; daily and weekly number of 

hours actually worked; deductions 

made; and actual wages paid. Further, 

the Agency Head must cause or require 

the contracting officer to insert in any 

such contract a clause providing that the 

records to be maintained under this 

paragraph must be made available by 

the contractor or subcontractor for 

inspection, copying, or transcription by 

authorized representatives of the (write 

the name of agency) and the Department 

of Labor, and the contractor or 

subcontractor will permit such 

representatives to interview workers 

during working hours on the job. 

(d) Incorporation of contract clauses 

and wage determinations by reference. 

Although agencies are required to insert 

the contract clauses set forth in this 

section, along with appropriate wage 

determinations, in full into covered 

contracts, and contractors and 

subcontractors are required to insert 

them in any lower-tier subcontracts, the 

incorporation by reference of the 

required contract clauses and 

appropriate wage determinations will be 

given the same force and effect as if they 

were inserted in full text. 

(e) Incorporation by operation of law. 

The contract clauses set forth in this 

section, along with the correct wage 

determinations, will be considered to be 

a part of every prime contract required 

by the applicable statutes referenced by 

§ 5.1 to include such clauses, and will 

be effective by operation of law, 

whether or not they are included or 

incorporated by reference into such 

contract, unless the Administrator 

grants a variance, tolerance, or 

exemption from the application of this 

paragraph. Where the clauses and 

applicable wage determinations are 

effective by operation of law under this 

paragraph, the prime contractor must be 

compensated for any resulting increase 

in wages in accordance with applicable 

law. 

■ 26. Revise § 5.6 to read as follows: 

§ 5.6 Enforcement. 

(a) Agency responsibilities. (1)(i) The 

Federal agency has the initial 

responsibility to ascertain whether the 

clauses required by § 5.5 and the 

appropriate wage determination(s) have 

been incorporated into the contracts 

subject to the labor standards provisions 

of the laws referenced by § 5.1. 

Additionally, a Federal agency that 

provides Federal financial assistance 

that is subject to the labor standards 

provisions of the Act must promulgate 

the necessary regulations or procedures 

to require the recipient or sub-recipient 

of the Federal assistance to insert in its 

contracts the provisions of § 5.5. No 

payment, advance, grant, loan, or 

guarantee of funds will be approved by 

the Federal agency unless it ensures that 

the clauses required by § 5.5 and the 

appropriate wage determination(s) are 

incorporated into such contracts. 

Furthermore, no payment, advance, 

grant, loan, or guarantee of funds will be 

approved by the Federal agency after the 

beginning of construction unless there is 

on file with the Federal agency a 

certification by the contractor that the 

contractor and its subcontractors have 

complied with the provisions of § 5.5 or 

unless there is on file with the Federal 

agency a certification by the contractor 

that there is a substantial dispute with 

respect to the required provisions. 

(ii) If a contract subject to the labor 

standards provisions of the applicable 

statutes referenced by § 5.1 is entered 

into without the incorporation of the 

clauses required by § 5.5, the agency 

must, upon the request of the 

Administrator or upon its own 

initiative, either terminate and resolicit 

the contract with the required contract 

clauses, or incorporate the required 

clauses into the contract (or ensure they 

are so incorporated) through 

supplemental agreement, change order, 

or any and all authority that may be 

needed. Where an agency has not 

entered directly into such a contract but 

instead has provided Federal financial 

assistance, the agency must ensure that 

the recipient or sub-recipient of the 

Federal assistance similarly 

incorporates the clauses required into 

its contracts. The method of 

incorporation of the correct wage 

determination, and adjustment in 

contract price, where appropriate, 

should be in accordance with applicable 


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law. Additionally, the following 

requirements apply: 

(A) Unless the Administrator directs 

otherwise, the incorporation of the 

clauses required by § 5.5 must be 

retroactive to the date of contract award 

or start of construction if there is no 

award. 

(B) If this incorporation occurs as the 

result of a request from the 

Administrator, the incorporation must 

take place within 30 days of the date of 

that request, unless the agency has 

obtained an extension from the 

Administrator. 

(C) The contractor must be 

compensated for any increases in wages 

resulting from incorporation of a 

missing contract clauses. 

(D) If the recipient refuses to 

incorporate the clauses as required, the 

agency must make no further payment, 

advance, grant, loan, or guarantee of 

funds in connection with the contract 

until the recipient incorporates the 

required clauses into its contract, and 

must promptly refer the dispute to the 

Administrator for further proceedings 

under § 5.13. 

(E) Before terminating a contract 

pursuant to this section, the agency 

must withhold or cross-withhold 

sufficient funds to remedy any back 

wage liability resulting from the failure 

to incorporate the correct wage 

determination or otherwise identify and 

obligate sufficient funds through a 

termination settlement agreement, bond, 

or other satisfactory mechanism. 

(F) Notwithstanding the requirement 

to incorporate the contract clauses and 

correct wage determination within 30 

days, the contract clauses and correct 

wage determination will be effective by 

operation of law, retroactive to the 

beginning of construction, in 

accordance with § 5.5(e). 

(2)(i) Certified payrolls submitted 

pursuant to § 5.5(a)(3)(ii) must be 

preserved by the Federal agency for a 

period of 3 years after all the work on 

the prime contract is completed, and 

must be produced at the request of the 

Department of Labor at any time during 

the 3-year period, regardless of whether 

the Department of Labor has initiated an 

investigation or other compliance 

action. 

(ii) In situations where the Federal 

agency does not itself maintain certified 

payrolls required to be submitted 

pursuant to § 5.5(a)(3)(ii), upon the 

request of the Department of Labor the 

Federal agency must ensure that such 

certified payrolls are provided to the 

Department of Labor. Such certified 

payrolls may be provided by the 

applicant, sponsor, owner, or other 

entity, as the case may be, directly to the 

Department of Labor, or to the Federal 

agency which, in turn, must provide 

those records to the Department of 

Labor. 

(3) The Federal agency will cause 

such investigations to be made as may 

be necessary to assure compliance with 

the labor standards clauses required by 

§ 5.5 and the applicable statutes 

referenced in § 5.1. Investigations will 

be made of all contracts with such 

frequency as may be necessary to assure 

compliance. Such investigations will 

include interviews with workers, which 

must be taken in confidence, and 

examinations of certified payrolls, 

regular payrolls, and other basic records 

required to be maintained under 

§ 5.5(a)(3). In making such 

examinations, particular care must be 

taken to determine the correctness of 

classification(s) of work actually 

performed, and to determine whether 

there is a disproportionate amount of 

work by laborers and of apprentices 

registered in approved programs. Such 

investigations must also include 

evidence of fringe benefit plans and 

payments thereunder. Federal agencies 

must give priority to complaints of 

alleged violations. 

(4) In accordance with normal 

operating procedures, the contracting 

agency may be furnished various 

investigatory material from the 

investigation files of the Department of 

Labor. None of the material, other than 

computations of back wages, liquidated 

damages, and monetary relief for 

violations of § 5.5(a)(11) or (b)(5), and 

the summary of back wages due, may be 

disclosed in any manner to anyone 

other than Federal officials charged with 

administering the contract or program 

providing Federal assistance to the 

contract, without requesting the 

permission and views of the Department 

of Labor. 

(b) Department of Labor investigations 

and other compliance actions. (1) The 

Administrator will investigate and 

conduct other compliance actions as 

deemed necessary in order to obtain 

compliance with the labor standards 

provisions of the applicable statutes 

referenced by § 5.1, or to affirm or reject 

the recommendations by the Agency 

Head with respect to labor standards 

matters arising under the statutes 

referenced by § 5.1. 

(2) Federal agencies, contractors, 

subcontractors, sponsors, applicants, 

owners, or other entities, as the case 

may be, must cooperate with any 

authorized representative of the 

Department of Labor in the inspection of 

records, in interviews with workers, and 

in all other aspects of the investigations 

or other compliance actions. 

(3) The findings of such an 

investigation or other compliance 

action, including amounts found due, 

may not be altered or reduced without 

the approval of the Department of Labor. 

(4) Where the underpayments 

disclosed by such an investigation or 

other compliance action total $1,000 or 

more, where there is reason to believe 

that the contractor or subcontractor has 

disregarded its obligations to workers or 

subcontractors, or where liquidated 

damages may be assessed under 

CWHSSA, the Department of Labor will 

furnish the Federal agency an 

enforcement report detailing the labor 

standards violations disclosed by the 

investigation or other compliance action 

and any action taken by the contractor 

or subcontractor to correct the 

violations, including any payment of 

back wages or any other relief provided 

workers or remedial actions taken for 

violations of § 5.5(a)(11) or (b)(5). In 

other circumstances, the Federal agency 

will be furnished a notification 

summarizing the findings of the 

investigation or other compliance 

action. 

(c) Confidentiality requirements. It is 

the policy of the Department of Labor to 

protect the identity of its confidential 

sources and to prevent an unwarranted 

invasion of personal privacy. 

Accordingly, the identity of a worker or 

other informant who makes a written or 

oral statement as a complaint or in the 

course of an investigation or other 

compliance action, as well as portions 

of the statement which would tend to 

reveal the identity of the informant, will 

not be disclosed in any manner to 

anyone other than Federal officials 

without the prior consent of the 

informant. Disclosure of such 

statements will be governed by the 

provisions of the ‘‘Freedom of 

Information Act’’ (5 U.S.C. 552, see part 

70 of this subtitle) and the ‘‘Privacy Act 

of 1974’’ (5 U.S.C. 552a, see part 71 of 

this subtitle). 

■ 27. Amend § 5.7 by revising paragraph 

(a) to read as follows: 

§ 5.7 Reports to the Secretary of Labor. 

(a) Enforcement reports. (1) Where 

underpayments by a contractor or 

subcontractor total less than $1,000, 

where there is no reason to believe that 

the contractor or subcontractor has 

disregarded its obligations to workers or 

subcontractors, and where restitution 

has been effected and future compliance 

assured, the Federal agency need not 

submit its investigative findings and 

recommendations to the Administrator, 

unless the investigation or other 

compliance action was made at the 

request of the Department of Labor. In 


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the latter case, the Federal agency will 

submit a factual summary report 

detailing any violations including any 

data on the amount of restitution paid, 

the number of workers who received 

restitution, liquidated damages assessed 

under the Contract Work Hours and 

Safety Standards Act, corrective 

measures taken (such as ‘‘letters of 

notice’’ or remedial action taken for 

violations of § 5.5(a)(11) or (b)(5)), and 

any information that may be necessary 

to review any recommendations for an 

appropriate adjustment in liquidated 

damages under § 5.8. 

(2) Where underpayments by a 

contractor or subcontractor total $1,000 

or more, or where there is reason to 

believe that the contractor or 

subcontractor has disregarded its 

obligations to workers or subcontractors, 

the Federal agency will furnish within 

60 days after completion of its 

investigation, a detailed enforcement 

report to the Administrator. 

* * * * * 

■ 28. Revise § 5.9 to read as follows: 

§ 5.9 Suspension of funds. 

(a) Suspension and withholding. In 

the event of failure or refusal of the 

contractor or any subcontractor to 

comply with the applicable statutes 

referenced by § 5.1 and the labor 

standards clauses contained in § 5.5, 

whether incorporated into the contract 

physically, by reference, or by operation 

of law, the Federal agency, upon its own 

action or upon written request of an 

authorized representative of the 

Department of Labor, must take such 

action as may be necessary to cause the 

suspension of the payment, advance, or 

guarantee of funds until such time as 

the violations are discontinued or until 

sufficient funds are withheld to 

compensate workers for the wages to 

which they are entitled, any monetary 

relief due for violations of § 5.5(a)(11) or 

(b)(5), and to cover any liquidated 

damages and pre-judgment or postjudgment interest which may be due. 

(b) Cross-withholding. In addition to 

the suspension and withholding of 

funds from the contract under which the 

violation(s) occurred, the necessary 

funds also may be withheld under any 

other Federal contract with the same 

prime contractor, or any other federally 

assisted contract that is subject to DavisBacon prevailing wage requirements 

and is held by the same prime 

contractor, regardless of whether the 

other contract was awarded or assisted 

by the same agency. 

(c) Cross-withholding from different 

legal entities. Cross-withholding of 

funds may be requested from contracts 

held by other entities that may be 

considered to be the same prime 

contractor as that term is defined in 

§ 5.2. Such cross-withholding is 

appropriate where the separate legal 

entities have independently consented 

to it by entering into contracts 

containing the withholding provisions 

at § 5.5(a)(2) and (b)(3). Crosswithholding from a contract held by a 

different legal entity is not appropriate 

unless the withholding provisions were 

incorporated in full or by reference in 

that entity’s contract. Absent 

exceptional circumstances, crosswithholding is not permitted from a 

contract held by a different legal entity 

where the labor standards were 

incorporated only by operation of law 

into that contract. 

■ 29. Revise § 5.10 to read as follows: 

§ 5.10 Restitution, criminal action. 

(a) In cases other than those 

forwarded to the Attorney General of the 

United States under paragraph (b) of 

this section where violations of the 

labor standards clauses contained in 

§ 5.5 and the applicable statutes 

referenced by § 5.1 result in 

underpayment of wages to workers or 

monetary damages caused by violations 

of § 5.5(a)(11) or (b)(5), the Federal 

agency or an authorized representative 

of the Department of Labor will request 

that restitution be made to such workers 

or on their behalf to plans, funds, or 

programs for any type of bona fide 

fringe benefits within the meaning of 40 

U.S.C. 3141(2)(B), including interest 

from the date of the underpayment or 

loss. Interest on any back wages or 

monetary relief provided for in this part 

will be calculated using the percentage 

established for the underpayment of 

taxes under 26 U.S.C. 6621 and will be 

compounded daily. 

(b) In cases where the Agency Head or 

the Administrator finds substantial 

evidence that such violations are willful 

and in violation of a criminal statute, 

the matter will be forwarded to the 

Attorney General of the United States 

for prosecution if the facts warrant. In 

all such cases the Administrator will be 

informed simultaneously of the action 

taken. 

■ 30. Revise § 5.11 to read as follows: 

§ 5.11 Disputes concerning payment of 

wages. 

(a) This section sets forth the 

procedure for resolution of disputes of 

fact or law concerning payment of 

prevailing wage rates, overtime pay, 

proper classification, or monetary relief 

for violations of § 5.5(a)(11) or (b)(5). 

The procedures in this section may be 

initiated upon the Administrator’s own 

motion, upon referral of the dispute by 

a Federal agency pursuant to § 5.5(a)(9), 

or upon request of the contractor or 

subcontractor. 

(b)(1) In the event of a dispute 

described in paragraph (a) of this 

section in which it appears that relevant 

facts are at issue, the Administrator will 

notify the affected contractor and 

subcontractor, if any, by registered or 

certified mail to the last known address 

or by any other means normally 

assuring delivery, of the investigation 

findings. If the Administrator 

determines that there is reasonable 

cause to believe that either the 

contractor, the subcontractor, or both, 

should also be subject to debarment 

under the Davis-Bacon Act or any of the 

other applicable statutes referenced by 

§ 5.1, the notification will so indicate. 

(2) A contractor or subcontractor 

desiring a hearing concerning the 

Administrator’s investigation findings 

must request such a hearing by letter or 

by any other means normally assuring 

delivery, sent within 30 days of the date 

of the Administrator’s notification. The 

request must set forth those findings 

which are in dispute and the reasons 

therefor, including any affirmative 

defenses. 

(3) Upon receipt of a timely request 

for a hearing, the Administrator will 

refer the case to the Chief 

Administrative Law Judge by Order of 

Reference, with an attached copy of the 

notification from the Administrator and 

the response of the contractor or 

subcontractor, for designation of an 

Administrative Law Judge to conduct 

such hearings as may be necessary to 

resolve the disputed matters. The 

hearings will be conducted in 

accordance with the procedures set 

forth in part 6 of this subtitle. 

(c)(1) In the event of a dispute 

described in paragraph (a) of this 

section in which it appears that there 

are no relevant facts at issue, and where 

there is not at that time reasonable cause 

to institute debarment proceedings 

under § 5.12, the Administrator will 

notify the contractor and subcontractor, 

if any, by registered or certified mail to 

the last known address or by any other 

means normally assuring delivery, of 

the investigation findings, and will 

issue a ruling on any issues of law 

known to be in dispute. 

(2)(i) If the contractor or subcontractor 

disagrees with the factual findings of the 

Administrator or believes that there are 

relevant facts in dispute, the contractor 

or subcontractor must advise the 

Administrator by letter or by any other 

means normally assuring delivery, sent 

within 30 days of the date of the 

Administrator’s notification. In the 

response, the contractor or 


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subcontractor must explain in detail the 

facts alleged to be in dispute and attach 

any supporting documentation. 

(ii) Upon receipt of a response under 

paragraph (c)(2)(i) of this section 

alleging the existence of a factual 

dispute, the Administrator will examine 

the information submitted. If the 

Administrator determines that there is a 

relevant issue of fact, the Administrator 

will refer the case to the Chief 

Administrative Law Judge in accordance 

with paragraph (b)(3) of this section. If 

the Administrator determines that there 

is no relevant issue of fact, the 

Administrator will so rule and advise 

the contractor and subcontractor, if any, 

accordingly. 

(3) If the contractor or subcontractor 

desires review of the ruling issued by 

the Administrator under paragraph 

(c)(1) or (2) of this section, the 

contractor or subcontractor must file a 

petition for review thereof with the 

Administrative Review Board within 30 

days of the date of the ruling, with a 

copy thereof the Administrator. The 

petition for review must be filed in 

accordance with part 7 of this subtitle. 

(d) If a timely response to the 

Administrator’s findings or ruling is not 

made or a timely petition for review is 

not filed, the Administrator’s findings or 

ruling will be final, except that with 

respect to debarment under the DavisBacon Act, the Administrator will 

advise the Comptroller General of the 

Administrator’s recommendation in 

accordance with § 5.12(a)(2). If a timely 

response or petition for review is filed, 

the findings or ruling of the 

Administrator will be inoperative unless 

and until the decision is upheld by the 

Administrative Law Judge or the 

Administrative Review Board. 

■ 31. Revise § 5.12 to read as follows: 

§ 5.12 Debarment proceedings. 

(a) Debarment standard and ineligible 

list. (1) Whenever any contractor or 

subcontractor is found by the Secretary 

of Labor to have disregarded their 

obligations to workers or subcontractors 

under the Davis-Bacon Act, any of the 

other applicable statutes referenced by 

§ 5.1, this part, or part 3 of this subtitle, 

such contractor or subcontractor and 

their responsible officers, if any, and 

any firm, corporation, partnership, or 

association in which such contractor, 

subcontractor, or responsible officer has 

an interest will be ineligible for a period 

of 3 years to be awarded any contract or 

subcontract of the United States or the 

District of Columbia and any contract or 

subcontract subject to the labor 

standards provisions of any of the 

statutes referenced by § 5.1. 

(2) In cases arising under contracts 

covered by the Davis-Bacon Act, the 

Administrator will transmit to the 

Comptroller General the name(s) of the 

contractors or subcontractors and their 

responsible officers, if any, and any 

firms, corporations, partnerships, or 

associations in which the contractors, 

subcontractors, or responsible officers 

are known to have an interest, who have 

been found to have disregarded their 

obligations to workers or subcontractors, 

and the recommendation of the 

Secretary of Labor or authorized 

representative regarding debarment. In 

cases arising under contracts covered by 

any of the applicable statutes referenced 

by § 5.1 other than the Davis-Bacon Act, 

the Administrator determines the 

name(s) of the contractors or 

subcontractors and their responsible 

officers, if any, and any firms, 

corporations, partnerships, or 

associations in which the contractors, 

subcontractors, or responsible officers 

are known to have an interest, to be 

debarred. The Comptroller General will 

distribute a list to all Federal agencies 

giving the names of such ineligible 

person or firms, who will be ineligible 

for a period of 3 years (from the date of 

publication by the Comptroller General 

of the name(s) of any such person or 

firm on the ineligible list) to be awarded 

any contract or subcontract of the 

United States or the District of Columbia 

and any contract or subcontract subject 

to the labor standards provisions of any 

of the statutes referenced by § 5.1. 

(b) Procedure. (1) In addition to cases 

under which debarment action is 

initiated pursuant to § 5.11, whenever as 

a result of an investigation conducted by 

the Federal agency or the Department of 

Labor, and where the Administrator 

finds reasonable cause to believe that a 

contractor or subcontractor has 

committed violations which constitute a 

disregard of its obligations to workers or 

subcontractors under the Davis-Bacon 

Act, the labor standards provisions of 

any of the other applicable statutes 

referenced by § 5.1, this part, or part 3 

of this subtitle, the Administrator will 

notify by registered or certified mail to 

the last known address or by any other 

means normally assuring delivery, the 

contractor or subcontractor and 

responsible officers, if any, and any 

firms, corporations, partnerships, or 

associations in which the contractors, 

subcontractors, or responsible officers 

are known to have an interest of the 

finding. 

(i) The Administrator will afford such 

contractor, subcontractor, responsible 

officer, and any other parties notified an 

opportunity for a hearing as to whether 

debarment action should be taken under 

paragraph (a) of this section. The 

Administrator will furnish to those 

notified a summary of the investigative 

findings. 

(ii) If the contractor, subcontractor, 

responsible officer, or any other parties 

notified wish to request a hearing as to 

whether debarment action should be 

taken, such a request must be made by 

letter or by any other means normally 

assuring delivery, sent within 30 days of 

the date of the notification from the 

Administrator, and must set forth any 

findings which are in dispute and the 

basis for such disputed findings, 

including any affirmative defenses to be 

raised. 

(iii) Upon timely receipt of such 

request for a hearing, the Administrator 

will refer the case to the Chief 

Administrative Law Judge by Order of 

Reference, with an attached copy of the 

notification from the Administrator and 

the responses of the contractor, 

subcontractor, responsible officers, or 

any other parties notified, for 

designation of an Administrative Law 

Judge to conduct such hearings as may 

be necessary to determine the matters in 

dispute. 

(iv) In considering debarment under 

any of the statutes referenced by § 5.1 

other than the Davis-Bacon Act, the 

Administrative Law Judge will issue an 

order concerning whether the 

contractor, subcontractor, responsible 

officer, or any other party notified is to 

be debarred in accordance with 

paragraph (a) of this section. In 

considering debarment under the DavisBacon Act, the Administrative Law 

Judge will issue a recommendation as to 

whether the contractor, subcontractor, 

responsible officers, or any other party 

notified should be debarred under 40 

U.S.C. 3144(b). 

(2) Hearings under this section will be 

conducted in accordance with part 6 of 

this subtitle. If no hearing is requested 

within 30 days of the date of the 

notification from the Administrator, the 

Administrator’s findings will be final, 

except with respect to recommendations 

regarding debarment under the DavisBacon Act, as set forth in paragraph 

(a)(2) of this section. 

(c) Interests of debarred parties. (1) A 

finding as to whether persons or firms 

whose names appear on the ineligible 

list have an interest under 40 U.S.C. 

3144(b) or paragraph (a) of this section 

in any other firm, corporation, 

partnership, or association, may be 

made through investigation, hearing, or 

otherwise. 

(2)(i) The Administrator, on their own 

motion or after receipt of a request for 

a determination pursuant to paragraph 


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(c)(3) of this section may make a finding 

on the issue of interest. 

(ii) If the Administrator determines 

that there may be an interest, but finds 

that there is insufficient evidence to 

render a final ruling thereon, the 

Administrator may refer the issue to the 

Chief Administrative Law Judge in 

accordance with paragraph (c)(4) of this 

section. 

(iii) If the Administrator finds that no 

interest exists, or that there is not 

sufficient information to warrant the 

initiation of an investigation, the 

requesting party, if any, will be so 

notified and no further action taken. 

(iv)(A) If the Administrator finds that 

an interest exists, the person or firm 

affected will be notified of the 

Administrator’s finding (by certified 

mail to the last known address or by any 

other means normally assuring 

delivery), which will include the 

reasons therefore, and such person or 

firm will be afforded an opportunity to 

request that a hearing be held to decide 

the issue. 

(B) Such person or firm will have 20 

days from the date of the 

Administrator’s ruling to request a 

hearing. A person or firm desiring a 

hearing must request it by letter or by 

any other means normally assuring 

delivery, sent within 20 days of the date 

of the Administrator’s notification. A 

detailed statement of the reasons why 

the Administrator’s ruling is in error, 

including facts alleged to be in dispute, 

if any, must be submitted with the 

request for a hearing. 

(C) If no hearing is requested within 

the time mentioned in paragraph 

(c)(2)(iv)(B) of this section, the 

Administrator’s finding will be final and 

the Administrator will notify the 

Comptroller General in cases arising 

under the DBA. If a hearing is requested, 

the ruling of the Administrator will be 

inoperative unless and until the 

administrative law judge or the 

Administrative Review Board issues an 

order that there is an interest. 

(3)(i) A request for a determination of 

interest may be made by any interested 

party, including contractors or 

prospective contractors and associations 

of contractors, representatives of 

workers, and interested agencies. Such 

a request must be submitted in writing 

to the Administrator, Wage and Hour 

Division, U.S. Department of Labor, 200 

Constitution Avenue NW, Washington, 

DC 20210. 

(ii) The request must include a 

statement setting forth in detail why the 

petitioner believes that a person or firm 

whose name appears on the ineligible 

list has an interest in any firm, 

corporation, partnership, or association 

which is seeking or has been awarded 

a contract or subcontract of the United 

States or the District of Columbia, or a 

contract or subcontract that is subject to 

the labor standards provisions of any of 

the statutes referenced by § 5.1. No 

particular form is prescribed for the 

submission of a request under this 

section. 

(4) The Administrator, on their own 

motion under paragraph (c)(2)(ii) of this 

section or upon a request for hearing 

where the Administrator determines 

that relevant facts are in dispute, will by 

order refer the issue to the Chief 

Administrative Law Judge, for 

designation of an Administrative Law 

Judge who will conduct such hearings 

as may be necessary to render a decision 

solely on the issue of interest. Such 

proceedings must be conducted in 

accordance with the procedures set 

forth in part 6 of this subtitle. 

(5) If the person or firm affected 

requests a hearing and the 

Administrator determines that relevant 

facts are not in dispute, the 

Administrator will refer the issue and 

the record compiled thereon to the 

Administrative Review Board to render 

a decision solely on the issue of interest. 

Such proceeding must be conducted in 

accordance with the procedures set 

forth in part 7 of this subtitle. 

■ 32. Revise § 5.13 to read as follows: 

§ 5.13 Rulings and interpretations. 

(a) All questions relating to the 

application and interpretation of wage 

determinations (including the 

classifications therein) issued pursuant 

to part 1 of this subtitle, of the rules 

contained in this part and in parts 1 and 

3 of this subtitle, and of the labor 

standards provisions of any of the 

statutes listed in § 5.1 must be referred 

to the Administrator for appropriate 

ruling or interpretation. These rulings 

and interpretations are authoritative and 

those under the Davis-Bacon Act may be 

relied upon as provided for in section 

10 of the Portal-to-Portal Act of 1947 (29 

U.S.C. 259). Requests for such rulings 

and interpretations should be submitted 

via email to dba.rulingrequest@dol.gov; 

by mail to Administrator, Wage and 

Hour Division, U.S. Department of 

Labor, 200 Constitution Ave. NW, 

Washington, DC 20210; or through other 

means directed by the Administrator. 

(b) If any such ruling or interpretation 

is made by an authorized representative 

of the Administrator of the Wage and 

Hour Division, any interested party may 

seek reconsideration of the ruling or 

interpretation by the Administrator of 

the Wage and Hour Division. The 

procedures and time limits set out in 

§ 1.8 of this subtitle apply to any such 

request for reconsideration. 

■ 33. Amend § 5.15 by revising 

paragraphs (c)(4) and (d)(1) to read as 

follows: 

§ 5.15 Limitations, variations, tolerances, 

and exemptions under the Contract Work 

Hours and Safety Standards Act. 

* * * * * 

(c) * * * 

(4)(i) Time spent in an organized 

program of related, supplemental 

instruction by laborers or mechanics 

employed under bona fide 

apprenticeship programs may be 

excluded from working time if the 

criteria prescribed in paragraphs 

(c)(4)(ii) and (iii) of this section are met. 

(ii) The apprentice comes within the 

definition contained in § 5.2. 

(iii) The time in question does not 

involve productive work or performance 

of the apprentice’s regular duties. 

(d) * * * 

(1) In the event of failure or refusal of 

the contractor or any subcontractor to 

comply with overtime pay requirements 

of the Contract Work Hours and Safety 

Standards Act, if the funds withheld by 

Federal agencies for the violations are 

not sufficient to pay fully the unpaid 

wages and any back pay or other 

monetary relief due laborers and 

mechanics, with interest, and the 

liquidated damages due the United 

States, the available funds will be used 

first to compensate the laborers and 

mechanics for the wages to which they 

are entitled (or an equitable portion 

thereof when the funds are not adequate 

for this purpose); and the balance, if 

any, will be used for the payment of 

liquidated damages. 

* * * * * 

§ 5.16 [Removed and Reserved] 

■ 34. Remove and reserve § 5.16. 

§ 5.17 [Removed and Reserved] 

■ 35. Remove and reserve § 5.17. 

■ 36. Add § 5.18 to subpart A to read as 

follows: 

§ 5.18 Remedies for retaliation. 

(a) Administrator request to remedy 

violation. When the Administrator finds 

that any person has discriminated in 

any way against any worker or job 

applicant in violation of § 5.5(a)(11) or 

(b)(5), or caused any person to 

discriminate in any way against any 

worker or job applicant in violation of 

§ 5.5(a)(11) or (b)(5), the Administrator 

will notify the person, any contractors 

for whom the person worked or on 

whose behalf the person acted, and any 

upper tier contractors, as well as the 

relevant contracting agency(ies) of the 


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discrimination and request that the 

person and any contractors for whom 

the person worked or on whose behalf 

the person acted remedy the violation. 

(b) Administrator directive to remedy 

violation and provide make whole relief. 

If the person and any contractors for 

whom the person worked or on whose 

behalf the person acted do not remedy 

the violation, the Administrator in the 

notification of violation findings issued 

under § 5.11 or § 5.12 will direct the 

person and any contractors for whom 

the person worked or on whose behalf 

the person acted to provide appropriate 

make whole relief to affected worker(s) 

and job applicant(s) or take appropriate 

remedial action, or both, to correct the 

violation, and will specify the particular 

relief and remedial actions to be taken. 

(c) Examples of available make whole 

relief and remedial actions. Such relief 

and remedial actions may include, but 

are not limited to, employment, 

reinstatement, and promotion, together 

with back pay and interest; restoration 

of the terms, conditions, and privileges 

of the worker’s employment or former 

employment; the expungement of 

warnings, reprimands, or derogatory 

references; the provision of a neutral 

employment reference; and the posting 

of a notice to workers that the contractor 

or subcontractor agrees to comply with 

the Davis-Bacon Act and Related Acts 

anti-retaliation requirements. 

■ 37. Revise § 5.20 to read as follows: 

§ 5.20 Scope and significance of this 

subpart. 

The 1964 amendments (Pub. L. 88– 

349) to the Davis-Bacon Act require, 

among other things, that the prevailing 

wage determined for Federal and 

federally assisted construction include 

the basic hourly rate of pay and the 

amount contributed by the contractor or 

subcontractor for certain fringe benefits 

(or the cost to them of such benefits). 

The purpose of this subpart is to explain 

the provisions of these amendments. 

This subpart makes available in one 

place official interpretations of the 

fringe benefits provisions of the DavisBacon Act. These interpretations will 

guide the Department of Labor in 

carrying out its responsibilities under 

these provisions. These interpretations 

are intended also for the guidance of 

contractors, their associations, laborers 

and mechanics and their organizations, 

and local, State and Federal agencies, 

who may be concerned with these 

provisions of the law. The 

interpretations contained in this subpart 

are authoritative and may be relied 

upon as provided for in section 10 of the 

Portal-to-Portal Act of 1947 (29 U.S.C. 

259). The omission to discuss a 

particular problem in this subpart or in 

interpretations supplementing it should 

not be taken to indicate the adoption of 

any position by the Secretary of Labor 

with respect to such problem or to 

constitute an administrative 

interpretation, practice, or enforcement 

policy. Questions on matters not fully 

covered by this subpart may be referred 

to the Secretary for interpretation as 

provided in § 5.13. 

■ 38. Revise § 5.22 to read as follows: 

§ 5.22 Effect of the Davis-Bacon fringe 

benefits provisions. 

The Davis-Bacon Act and the 

prevailing wage provisions of the 

statutes referenced in § 1.1 of this 

subtitle confer upon the Secretary of 

Labor the authority to predetermine, as 

minimum wages, those wage rates found 

to be prevailing for corresponding 

classes of laborers and mechanics 

employed on projects of a character 

similar to the contract work in the area 

in which the work is to be performed. 

See the definitions of the terms 

‘‘prevailing wage’’ and ‘‘area’’ in § 1.2 of 

this subtitle. The fringe benefits 

amendments enlarge the scope of this 

authority by including certain bona fide 

fringe benefits within the meaning of 

the terms ‘‘wages’’, ‘‘scale of wages’’, 

‘‘wage rates’’, ‘‘minimum wages’’, and 

‘‘prevailing wages’’, as used in the 

Davis-Bacon Act. 

■ 39. Revise § 5.23 to read as follows: 

§ 5.23 The statutory provisions. 

Pursuant to the Davis-Bacon Act, as 

amended and codified at 40 U.S.C. 

3141(2), the term ‘‘prevailing wages’’ 

and similar terms include the basic 

hourly rate of pay and, for the listed 

fringe benefits and other bona fide 

fringe benefits not required by other 

law, the contributions irrevocably made 

by a contractor or subcontractor to a 

trustee or third party pursuant to a bona 

fide fringe benefit fund, plan, or 

program, and the costs to the contractor 

or subcontractor that may be reasonably 

anticipated in providing bona fide fringe 

benefits pursuant to an enforceable 

commitment to carry out a financially 

responsible plan or program, which was 

communicated in writing to the affected 

laborers and mechanics. Section 5.29 

discusses specific fringe benefits that 

may be considered to be bona fide. 

■ 40. Amend § 5.25 by adding paragraph 

(c) to read as follows: 

§ 5.25 Rate of contribution or cost for 

fringe benefits. 

* * * * * 

(c) Contractors must annualize all 

fringe benefit contributions to determine 

the hourly equivalent for which they 

may take credit against their fringe 

benefit obligation. 

(1) Method of computation. To 

annualize the cost of providing a fringe 

benefit, a contractor must divide the 

cost of the fringe benefit by the total 

number of hours worked on DavisBacon and non-Davis-Bacon work 

during the time period to which the cost 

is attributable to determine the rate of 

contribution per hour. If the amount of 

contribution varies per worker, credit 

must be determined separately for the 

amount contributed on behalf of each 

worker. 

(2) Exceptions requests. Contractors 

and other interested parties may request 

an exception from the annualization 

requirement by submitting a request to 

the WHD Administrator. Requests must 

be submitted in writing to the Division 

of Government Contracts Enforcement 

via email at DBAannualization@dol.gov 

or by mail to Director, Division of 

Government Contracts Enforcement, 

Wage and Hour Division, U.S. 

Department of Labor, 200 Constitution 

Ave., NW, Room S–3502, Washington, 

DC 20210. A request for exception must 

demonstrate the fringe benefit plan in 

question meets the following three 

factors: 

(i) The benefit provided is not 

continuous in nature; and 

(ii) The benefit does not compensate 

both private and public work; and 

(iii) The plan provides for immediate 

participation and essentially immediate 

vesting. 

(3) Previous exceptions. In the event 

that a fringe benefit plan (including a 

defined contribution pension plan with 

immediate participation and immediate 

vesting) was excepted from the 

annualization requirement prior to the 

effective date of these regulations, the 

plan’s exception will expire 18 months 

from the effective date of these 

regulations, unless an exception for the 

plan has been requested and received by 

that date under paragraph (c)(2) of this 

section. 

■ 41. Revise § 5.26 to read as follows: 

§ 5.26 ‘‘* * * contribution irrevocably made 

* * * to a trustee or to a third person’’. 

(a) Requirements. The following 

requirements apply to any fringe benefit 

contributions made to a trustee or to a 

third person pursuant to a fund, plan, or 

program: 

(1) Such contributions must be made 

irrevocably; 

(2) The trustee or third person may 

not be affiliated with the contractor or 

subcontractor; 

(3) The trustee or third person must 

adhere to any fiduciary responsibilities 

applicable under law; and 


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(4) The trust or fund must not permit 

the contractor or subcontractor to 

recapture any of the contributions paid 

in or any way divert the funds to its 

own use or benefit. 

(b) Excess payments. Notwithstanding 

the above, a contractor or subcontractor 

may recover sums which it had paid to 

a trustee or third person in excess of the 

contributions actually called for by the 

plan, such as excess payments made in 

error or in order to cover the estimated 

cost of contributions at a time when the 

exact amount of the necessary 

contributions is not yet known. For 

example, a benefit plan may provide for 

definite insurance benefits for 

employees in the event of contingencies 

such as death, sickness, or accident, 

with the cost of such definite benefits 

borne by the contractor or 

subcontractor. In such a case, if the 

insurance company returns the amount 

that the contractor or subcontractor paid 

in excess of the amount required to 

provide the benefits, this will not be 

deemed a recapture or diversion by the 

employer of contributions made 

pursuant to the plan. (See Report of the 

Senate Committee on Labor and Public 

Welfare, S. Rep. No. 963, 88th Cong., 2d 

Sess., p. 5.) 

■ 42. Revise § 5.28 to read as follows: 

§ 5.28 Unfunded plans. 

(a) The costs to a contractor or 

subcontractor which may be reasonably 

anticipated in providing benefits of the 

types described in the Act, pursuant to 

an enforceable commitment to carry out 

a financially responsible plan or 

program, are considered fringe benefits 

within the meaning of the Act (see 40 

U.S.C. 3141(2)(B)(ii)). The legislative 

history suggests that these provisions 

were intended to permit the 

consideration of fringe benefits meeting 

these requirements, among others, and 

which are provided from the general 

assets of a contractor or subcontractor. 

(Report of the House Committee on 

Education and Labor, H. Rep. No. 308, 

88th Cong., 1st Sess., p. 4.; see also S. 

Rep. No. 963, p. 6.) 

(b) Such a benefit plan or program, 

commonly referred to as an unfunded 

plan, may not constitute a fringe benefit 

within the meaning of the Act unless: 

(1) It could be reasonably anticipated 

to provide the benefits described in the 

Act; 

(2) It represents a commitment that 

can be legally enforced; 

(3) It is carried out under a financially 

responsible plan or program; 

(4) The plan or program providing the 

benefits has been communicated in 

writing to the laborers and mechanics 

affected; and 

(5) The contractor or subcontractor 

requests and receives approval of the 

plan or program from the Secretary, as 

described in paragraph (c) of this 

section. 

(c) To receive approval of an 

unfunded plan or program, a contractor 

or subcontractor must demonstrate in its 

request to the Secretary that the 

unfunded plan or program, and the 

benefits provided under such plan or 

program, are ‘‘bona fide,’’ meet the 

requirements set forth in paragraphs 

(b)(1) through (4) of this section, and are 

otherwise consistent with the Act. The 

request must include sufficient 

documentation to enable the Secretary 

to evaluate these criteria. Contractors 

and subcontractors may request 

approval of an unfunded plan or 

program by submitting a written request 

in one of the following manners: 

(1) By mail to the United States 

Department of Labor, Wage and Hour 

Division, Director, Division of 

Government Contracts Enforcement, 200 

Constitution Ave., NW, Room S–3502, 

Washington, DC 20210; 

(2) By email to unfunded@dol.gov (or 

its successor email address); or 

(3) By any other means directed by 

the Administrator. 

(d) Unfunded plans or programs may 

not be used as a means of avoiding the 

Act’s requirements. The words 

‘‘reasonably anticipated’’ require that 

any unfunded plan or program be able 

to withstand a test of actuarial 

soundness. Moreover, as in the case of 

other fringe benefits payable under the 

Act, an unfunded plan or program must 

be ‘‘bona fide’’ and not a mere 

simulation or sham for avoiding 

compliance with the Act. To prevent 

these provisions from being used to 

avoid compliance with the Act, the 

Secretary may direct a contractor or 

subcontractor to set aside in an account 

assets which, under sound actuarial 

principles, will be sufficient to meet 

future obligations under the plan. Such 

an account must be preserved for the 

purpose intended. (S. Rep. No. 963, p. 

6.) 

■ 43. Amend § 5.29 by revising 

paragraph (e) and adding paragraph (g) 

to read as follows: 

§ 5.29 Specific fringe benefits. 

* * * * * 

(e) Where the plan is not of the 

conventional type described in the 

preceding paragraph (d) of this section, 

the Secretary must examine the facts 

and circumstances to determine 

whether fringe benefits under the plan 

are ‘‘bona fide’’ in accordance with 

requirements of the Act. This is 

particularly true with respect to 

unfunded plans discussed in § 5.28. 

Contractors or subcontractors seeking 

credit under the Act for costs incurred 

for such plans must request specific 

approval from the Secretary under 

§ 5.5(a)(1)(iv). 

* * * * * 

(g) For a contractor or subcontractor to 

take credit for the costs of an 

apprenticeship program, it must meet 

the following requirements: 

(1) The program, in addition to 

meeting all other relevant requirements 

for fringe benefits in this subpart, must 

be registered with the Department of 

Labor’s Employment and Training 

Administration, Office of 

Apprenticeship (‘‘OA’’), or with a State 

Apprenticeship Agency recognized by 

the OA. 

(2) The contractor or subcontractor 

may only take credit for the actual costs 

incurred for the apprenticeship 

program, such as instruction, books, and 

tools or materials; it may not take credit 

for voluntary contributions beyond the 

costs actually incurred for the 

apprenticeship program. 

(3) Costs incurred for the 

apprenticeship for one classification of 

laborer or mechanic may not be used to 

offset costs incurred for another 

classification. 

(4) In applying the annualization 

principle to compute the allowable 

fringe benefit credit pursuant to § 5.25, 

the total number of working hours of 

employees to which the cost of an 

apprenticeship program is attributable is 

limited to the total number of hours 

worked by laborers and mechanics in 

the apprentice’s classification. For 

example, if a contractor enrolls an 

employee in an apprenticeship program 

for carpenters, the permissible hourly 

Davis-Bacon credit is determined by 

dividing the cost of the program by the 

total number of hours worked by the 

contractor’s carpenters and carpenters’ 

apprentices on covered and non-covered 

projects during the time period to which 

the cost is attributable, and such credit 

may only be applied against the 

contractor’s prevailing wage obligations 

for all carpenters and carpenters’ 

apprentices for each hour worked on the 

covered project. 

■ 44. Revise § 5.30 to read as follows: 

§ 5.30 Types of wage determinations. 

(a) When fringe benefits are prevailing 

for various classes of laborers and 

mechanics in the area of proposed 

construction, such benefits are 

includable in any Davis-Bacon wage 

determination. The illustrations 

contained in paragraph (c) of this 

section demonstrate how fringe benefits 


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may be listed on wage determinations in 

such cases. 

(b) Wage determinations do not 

include fringe benefits for various 

classes of laborers and mechanics 

whenever such benefits do not prevail 

in the area of proposed construction. 

When this occurs, the wage 

determination will contain only the 

basic hourly rates of pay which are 

prevailing for the various classes of 

laborers and mechanics. An illustration 

of this situation is contained in 

paragraph (c) of this section. 

(c) Illustrations: 

Classification Rate Fringes 

Bricklayer .................................................. $21.96 $0.00. 

Electrician ................................................. 47.65 3%+$14.88. 

Elevator mechanic .................................... 48.60 $35.825+a+b. 

a. Paid Holidays: New Year’s Day, Memorial Day, Independence Day, Labor Day, 

Veterans’ Day, Thanksgiving Day, Christmas Day and the Friday after Thanksgiving. 

b. Vacations: Employer contributes 8% of basic hourly rate for 5 years or more of 

service; 6% of basic hourly rate for 6 months to 5 years of service as vacation 

pay credit. 

Ironworker, structural ................................ 32.00 12.01. 

Laborer: Common or general ................... 15.21 4.54. 

Operator: Bulldozer ................................... 15.40 1.90. 

Plumber (excludes HVAC duct, pipe and 

unit installation).

38.38 16.67. 

Note 1 to paragraph (c): (This format is not necessarily in the exact form in which determinations will issue; it is for illustration only.) 

■ 45. Revise § 5.31 to read as follows: 

§ 5.31 Meeting wage determination 

obligations. 

(a) A contractor or subcontractor 

performing work subject to a DavisBacon wage determination may 

discharge their minimum wage 

obligations for the payment of both 

straight time wages and fringe benefits 

by paying in cash, making payments or 

incurring costs for ‘‘bona fide’’ fringe 

benefits of the types listed in the 

applicable wage determination or 

otherwise found prevailing by the 

Secretary of Labor, or by a combination 

thereof. 

(b) A contractor or subcontractor may 

discharge their obligations for the 

payment of the basic hourly rates and 

the fringe benefits where both are 

contained in a wage determination 

applicable to their laborers or 

mechanics in the following ways: 

(1) By paying not less than the basic 

hourly rate to the laborers or mechanics 

and by making contributions for ‘‘bona 

fide’’ fringe benefits in a total amount 

not less than the total of the fringe 

benefits required by the wage 

determination. For example, the 

obligations for ‘‘Laborer: common or 

general’’ in the illustration in § 5.30(c) 

will be met by the payment of a straight 

time hourly rate of not less than $15.21 

and by contributions of not less than a 

total of $4.54 an hour for ‘‘bona fide’’ 

fringe benefits; or 

(2) By paying in cash directly to 

laborers or mechanics for the basic 

hourly rate and by making an additional 

cash payment in lieu of the required 

benefits. For example, where an 

employer does not make payments or 

incur costs for fringe benefits, they 

would meet their obligations for 

‘‘Laborer: common or general’’ in the 

illustration in § 5.30(c), by paying 

directly to the laborers a straight time 

hourly rate of not less than $19.75 

($15.21 basic hourly rate plus $4.54 for 

fringe benefits); or 

(3) As stated in paragraph (a) of this 

section, the contractor or subcontractor 

may discharge their minimum wage 

obligations for the payment of straight 

time wages and fringe benefits by a 

combination of the methods illustrated 

in paragraphs (b)(1) through (2) of this 

section. Thus, for example, their 

obligations for ‘‘Laborer: common or 

general’’ may be met by an hourly rate, 

partly in cash and partly in payments or 

costs for fringe benefits which total not 

less than $19.75 ($15.21 basic hourly 

rate plus $4.54 for fringe benefits). 

■ 46. Add § 5.33 to read as follows: 

§ 5.33 Administrative expenses of a 

contractor or subcontractor. 

Administrative expenses incurred by 

a contractor or subcontractor in 

connection with the administration of a 

fringe benefit plan are not creditable as 

fringe benefits. For example, a 

contractor or subcontractor may not take 

credit for the cost of an office employee 

who fills out medical insurance claim 

forms for submission to an insurance 

carrier. 

■ 47. Add subpart C, consisting of 

§ 5.40, to read as follows: 

Subpart C—Severability 

§ 5.40 Severability. 

The provisions of this part are 

separate and severable and operate 

independently from one another. If any 

provision of this part is held to be 

invalid or unenforceable by its terms, or 

as applied to any person or 

circumstance, or stayed pending further 

agency action, the provision is to be 

construed so as to continue to give the 

maximum effect to the provision 

permitted by law, unless such holding 

is one of utter invalidity or 

unenforceability, in which event the 

provision is severable from this part and 

will not affect the remaining provisions. 

Signed this 9th day of March, 2022. 

Jessica Looman, 

Acting Administrator, Wage and Hour 

Division. 

[FR Doc. 2022–05346 Filed 3–17–22; 8:45 am] 

BILLING CODE 4510–27–P 


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