On August 23, 2023, the Department published in the Federal Register the final rule, “Updating the Davis-Bacon and Related Acts Regulations.” The final rule took effect on October 23, 2023.

On June 24, 2024, the U.S. District Court for the Northern District of Texas issued a nationwide preliminary injunction impacting the following three provisions of the final rule: (1) the provision within 29 CFR 5.2 codifying a distinction between material suppliers and contractors/subcontractors; (2) the provision within 29 CFR 5.2 requiring contractors and subcontractors to pay prevailing wages to delivery truck drivers they employ for onsite time that is more than de minimis; and (3) the provision at 29 CFR 5.5(e) directing that the DBRA apply via operation of law if a contracting agency erroneously omitted the provisions from covered contracts. The remainder of the Department’s final rule remains in effect.

In light of this injunction, these three provisions may not be implemented or enforced at this time. Because provisions (1) and (2) incorporated several aspects of the Department’s long-standing sub-regulatory guidance regarding the coverage of truck drivers and truck drivers’ assistants, the Department also provides the following enforcement guidance with respect to the application of coverage to truck drivers and truck drivers’ assistants, regardless of whether they work for contractors, subcontractors, or material suppliers, while the injunction remains in force:

  1. DBRA coverage should not be enforced for any time on the site of the work that truck drivers and truck drivers’ assistants spend engaged in “offsite delivery work,” which means the delivery of materials, articles, supplies, or equipment from a location that is not part of the site of the work, which may include pickup of the same in addition to, but not exclusive of, delivery, and which may also include activities essential or incidental to such delivery and pickup, such as loading, unloading, or waiting for materials to be loaded or unloaded.
  2. If a truck driver or truck driver’s assistant, in addition to performing offsite delivery work, performs other construction work on the site of the work (“non-delivery construction work”), such as installation or repair work, the worker’s time spent in the non-delivery construction work is covered by Davis-Bacon to the same extent as it would be for any other worker, and the applicable wage rate is the rate for the appropriate classification of the non-delivery construction work being performed.
  3. Transportation described in 29 CFR 5.2, “Construction, prosecution, completion, or repair,” paragraphs (2)(iv)(A), (B), (C), and (E), remains covered.

 

Under the Davis-Bacon and Related Acts and Reorganization Plan No. 14 of 1950, the U.S. Department of Labor is responsible for determining prevailing wages, issuing regulations and standards to be observed by federal agencies that award or fund projects subject to Davis-Bacon labor standards, and overseeing consistent enforcement of the Davis-Bacon labor standards.

The Davis-Bacon and Related Acts apply to contractors and subcontractors performing on federally funded or assisted contracts in excess of $2,000 for the construction, alteration, or repair (including painting and decorating) of public buildings or public works. Davis-Bacon Act and Related Act contractors and subcontractors must pay their laborers and mechanics employed under the contract no less than the locally prevailing wages and fringe benefits for corresponding work on similar projects in the area.

The Davis-Bacon Act directs the Department of Labor to determine such locally prevailing wage rates. The Davis-Bacon Act applies to contractors and subcontractors performing work on federal or District of Columbia contracts. The Davis-Bacon Act prevailing wage provisions apply to the “Related Acts,” under which federal agencies assist construction projects through grants, loans, loan guarantees, and insurance.

For prime contracts in excess of $100,000, contractors and subcontractors must also, under the provisions of the Contract Work Hours and Safety Standards Act, as amended, pay laborers and mechanics, including guards and watchmen, at least one and one-half times their regular rate of pay for all hours worked over 40 in a workweek. The overtime provisions of the Fair Labor Standards Act may also apply to DBA-covered contracts.

 

Online Training For Government Contracting Officials

Online training is available to assist all federal, state and local contracting agencies with information on federal rules concerning prevailing wages and other labor law requirements. The training modules, presented by WHD staff and its federal agency partners, provide contracting officials with information on the process of obtaining wage determinations; adding classifications to wage determinations (conformances); compliance principles, and enforcement process under both the Davis-Bacon Act (DBA) and the McNamara Service Contract Act (SCA).

Specifically, two training modules are currently being offered online. A four-hour session for the DBA and a second four-hour session on the SCA.

  • Prevailing Wage Seminars
  • sam.gov - This website provides a single location for federal contracting officers to use in obtaining appropriate Service Contract Act (SCA) and Davis-Bacon Act (DBA) wage determinations (WDs) for each official contract action. The website is available to the general public as well. Guidance in selecting WDs from this website is provided in the https://sam.gov/content/home Learning Center.