Final Rule: Updating the Davis-Bacon and Related Acts Regulations

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.