DBRA Comparison Charts

1.2

The existing process for determining a prevailing wage requires two steps:

1) identify if there was a single wage rate paid to more than 50% of workers in a classification, and then,

2) if not, rely on a weighted average of all the wage rates paid in the classification.

The final rule reverts to the pre-1982 “3-step process” for determining a prevailing wage:

1) if a majority (over 50%) of wage rates in a classification are the same, that is the prevailing wage,

2) if there is no majority, then the wage rate earned by the greatest number of workers, provided that at least 30% earn that rate, is the prevailing wage and

3) if no wage rate is earned by at least 30% of workers in the classification, use a weighted average.

§ 1.2

The existing regulation at § 1.2(a) does not expressly discuss fringe benefits calculations in wage determinations. Section 5.30 discusses fringe benefit calculations.

To determine the prevailing amount of fringe benefits, WHD examines whether the payment of fringe benefits prevails over the payment of no fringe benefits as follows:

1) If more than 50% of workers in a classification are not paid any fringe benefits, then the rate on the WD is zero.

2) If more than 50% of workers are paid fringe benefits, then WHD looks at the workers who are paid fringe benefits and determines if any one rate among them prevails under the 50% rule in § 1.2(a). If there is such a rate, that is the rate to be paid on the WD.

3) If fringe benefits overall prevail, but no single rate is paid to more than 50% of the workers in a classification who receive fringe benefits, then to calculate the fringe benefit rate for the WD, WHD averages the fringe benefits of those workers who are paid fringe benefits.

The changes to the fringe benefits determination process mirrors the changes in § 1.2 for determining the prevailing wage rate using the 3-step process. No changes were made to the relevant language in § 5.30.

Thus, WHD will continue to use the existing method of first asking whether the payment of fringe benefits prevails over the payment of no fringe benefits. This is a 50% majority question, even under the 30% rule.

1) If more than 50% of workers are not paid any fringe benefits, then the rate on the WD will be zero.

2) If more than 50% of the workers are paid fringe benefits, then WHD will look only at the workers who are paid fringe benefits and determine if any one rate among them prevails under § 1.2. If there is such a rate, that is the rate to be paid on the WD.

3) If fringe benefits overall prevail, but no single rate is paid to more than 30% of the workers who receive fringe benefits, then to calculate the fringe benefit rate for the WD, WHD will average the fringe benefits of those workers who are paid fringe benefits.

§ 1.7(a), § 1.2 § 1.5(b)(i)

“Area” is defined in § 1.2(b) as the city, town, village, county or other civil subdivision of the state in which the work is to be performed.

§ 1.7(a) explains that the county will normally be the area that is used as the basic geographical unit for calculating prevailing wages.

The final rule adds alternatives for specific circumstances to the existing definition of “area”:

1) multi-county project wage determinations for projects in multiple counties where all included counties’ data will be combined and a single wage rate per classification issued for the project, and

2) for the highway category of construction, WHD may use state highway districts or similar state geographic subdivisions in lieu of counties as the initial area unit of a wage determination.

Section 1.5(b)(i) integrates the multi-county option into the section of the regulations addressing procedures for project wage determinations.

§ 1.7(b)

§ 1.7(c)

The final rule eliminates the strict ban on mixing rural and metropolitan data so that:

(1) surrounding counties can be used when data is not sufficient at the county level, regardless of those surrounding counties’ specific designation as rural or metropolitan, and

(2) rural and metropolitan data can be combined at the supergroup level, or at the statewide level as a last resort, before concluding that no sufficient data exists for a classification.

§ 1.3(e)

§ 1.3(f)

§ 5.5(a)(1)

§ 1.3(g)–(j)

§ 1.4

§ 1.5

§ 1.6(b)

§ 1.6(c)(1)

§ 1.6(c)(2) and (c)(3)

The final rule adds language explaining wage determinations must be updated after contract award when:

• the contract or order is changed to include additional, substantial construction not within the scope of work, or
• the contract or order is changed to require the contractor to perform work for an additional time period not originally obligated, including when an option is exercised on a contract or order.

The final rule also provides that wage determinations in contracts requiring construction over a period of time that are not tied to the completion of any particular project (such as IDIQ contracts, schedule contracts, or long-term operations and maintenance contracts) must be updated annually.

Task orders issued under such IDIQ-type contracts must incorporate the most recent wage determination modification in the master contract at the time the task order is awarded.

§ 1.8

§ 5.13

§ 5.2

§ 1.2

The final rule creates a definition of agency to include any federal, state, or local agency, or other similar entity, that enters into a contract or provides assistance for Davis-Bacon projects.

The final rule makes federal agency into a subdefinition to clarify when the regulations are referring specifically to a federal agency and defines federal agency to include DC.

§ 5.2

§ 5.2

§ 5.2

§ 5.2

The final rule creates new definitions for contractor and subcontractor.

The definition of contractor includes within it any surety that is completing performance for a defaulted contractor pursuant to a performance bond. It does not include any entity that is a material supplier, except if that entity is performing work under a development statute.

The definition of subcontractor means any contractor that agrees to perform or be responsible for the performance of any part of a contract.

§ 5.2

§ 5.5

§ 5.9

In § 5.2, the final rule creates a new definition for prime contractor, which means any person or entity that enters into a contract with an agency, and 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, and any contractor (e.g., a general contractor) that has been delegated responsibility for overseeing all or substantially all of the construction anticipated by the prime contract.

For the purposes of the cross-withholding provisions in § 5.5, which limit cross-withholding to other contracts held by the same prime contractor, any such related entities falling within the definition of prime contractor but holding different prime contracts are considered to be the same prime contractor. This procedure is discussed in a new paragraph at § 5.9(c).

§ 5.2

§ 5.2

§ 5.2

§ 5.2

The final rule defines the term material supplier and excludes material suppliers from the definition of contractor. The definition explains that material suppliers are entities whose only contractual responsibilities are the delivery of materials/supplies and activities incidental to those tasks. It specifies that although a material supplier may both deliver and pick up materials, an entity that is solely engaged in picking up and hauling away materials is not a material supplier.

The definition of material supplier eliminates the subregulatory 20% threshold under which entities could perform a certain amount of non-delivery onsite construction work but still be classified as material suppliers. Rather, under the definition, an entity that engages in other construction work at the site of the work is not a material supplier (i.e., the entity is a contractor or subcontractor under the DBA).

§ 5.2

§ 5.2

§ 5.5(a)(3)

The final rule clarifies the distinction between “regular payrolls” and “other basic records” that contractors and subcontractors must make and maintain, and the “certified payroll” documents and statements of compliance that contractors must submit weekly.

The final rule adds requirements that contractors and subcontractors maintain DBRA contracts, subcontracts, and related documents, as well as worker telephone numbers and email addresses.

The final rule clarifies that the required records must be retained for at least 3 years after all the work on the prime contract is completed.

The final rule also codifies WHD’s longstanding policy that certified payrolls may be signed and submitted electronically.

§ 5.6(a)(2)

§ 5.5(a)(4)

The existing regulation provides that where a contractor performs construction on a project in a different locality from where the apprenticeship program is registered, the apprentice rates and ratios reflected in the registered program apply.

In addition, the existing regulation allows the payment of less than the predetermined rate for trainees working under ETA approved training programs.

The final rule requires contractors working outside of the locality in which their apprenticeship program was registered to follow the ratio and wage rate standards of the locality where the project is taking place.

The final rule also clarifies that where there is no registered program in the locality of the project establishing applicable apprentice wage rates and ratios, the rates and ratios under the contractor’s registered program apply.

The final rule removes the references to trainees and training programs throughout parts 1 and 5, except that the final rule retains the text currently found in § 5.2(n)(3), which states that the regulatory provisions do not apply to trainees employed on projects subject to 23 U.S.C. sec. 113 who are enrolled in programs which have been certified by the Secretary of Transportation in accordance with 23 U.S.C. sec. 113(c).

§ 5.5(a)(6)

§ 5.5(b)(4)

§ 5.5(a)

§ 5.5(d)

§ 5.25(c)

Existing guidance generally requires contractors to “annualize” contributions to fringe benefit plans to compute an hourly equivalent of fringe benefits when the contractor’s workers perform work on both DBRA-covered projects and private projects.

One exception to this general rule is that annualization is not required for defined contribution pension plans (DCPPs) that provide for immediate participation and essentially immediate vesting. Annualization is not currently addressed in the regulations.

The final rule adds new paragraph (c) to § 5.25 to codify the principle of annualization that is used to calculate the amount of Davis-Bacon credit that a contractor may receive for contributions to a bona fide fringe benefit plan (or the reasonably anticipated costs of an unfunded benefit plan) when the contractor’s workers work on both DBRA-covered and private (non-DBRA) work.

Contractors, plans, and other interested parties may request an exception from the annualization requirement by submitting a request to WHD, but such exceptions may be granted only if the benefit provided by the plan is not continuous in nature and does not compensate both DBRA-covered and non-DBRA work.

Consistent with existing guidance, the annualization requirement will not apply to contributions to defined contribution pension plans (DCPPs) as long as the DCPP contributions meet the exception requirements and the DCPP provides for immediate participation and essentially immediate vesting.

§ 5.26

§ 5.33

§ 5.29

The final rule states that the following requirements must be met for a contractor to claim a fringe benefit credit for the costs of an apprenticeship program:

• The program must be registered with Employment and Training Agency’s (ETA) Office of Apprenticeship (OA), or with a State Apprenticeship Agency recognized by the OA.
• The contractor’s apprenticeship contributions bear a “reasonable relationship” to the cost of apprenticeship benefits provided to the contractor’s workers.
• Costs incurred for the apprenticeship for one classification of laborer or mechanic may not be used to offset costs incurred for another classification.
• When computing the allowable hourly fringe benefit credit, the contractor must divide the cost of the program by the total number of hours worked by laborers and mechanics in the apprentice’s classification and may only apply the credit to those laborers in mechanics in that classification.

§ 5.5(a)(11)

§ 5.5(b)(5)

§ 5.18

§ 5.10(a)

§ 5.5(a)(1)(vi)

§ 5.5(a)(2)(i)

§ 5.5(a)(6)

§ 5.5(b)(3)(i)

§ 5.5(b)­(4)

Existing regulations and contract clauses do not discuss whether or how interest should be assessed on back wages.

The ARB and the Department’s ALJs have held that interest calculated from the date of the underpayment or loss is generally appropriate.

§ 5.11(b)

§ 5.11(c)

§ 5.12(b)

§ 5.6(b)

§ 5.12

Under the DBA, contractors are debarred for disregard of obligations to workers or subcontractors. Responsible officers and entities in which they have an interest are debarred for a mandatory 3-year period.

For Related Acts debarment, violations must be willful or aggravated.

§ 5.12

§ 5.12(c)

§ 5.12

§ 5.12

§ 5.5(a)(2)

§ 5.5(b)(3)

§ 5.9(b)

§ 5.9(c)

The final rule adds language clarifying that cross-withholding can be from any contract held by the same prime contractor, even if awarded or assisted by a different agency from the contract where the violations occurred. The final rule also adds a provision explaining that withholding for workers’ back wages has priority over most other competing claims.

(Note: Under the new definition of prime contractor in § 5.2, the cross-withholding provisions will also allow cross-withholding on contracts held by certain affiliates of the nominal prime contract (e.g., controlling shareholders or members of an entity, or the joint venturers or partners in any joint venture or partnership, holding a prime contract), or by a contractor (e.g., general contractor) that has been delegated the responsibility for overseeing all or substantially all the construction anticipated by the prime contract, as explained also in § 5.9(c)).

§ 5.6(a)(1)

§ 1.6(f)

Currently § 1.6(f) discusses post-award modification of contracts, but only when wage determinations (not contract clauses) are omitted. It states that WHD can instruct agencies to take necessary steps to incorporate missing wage determinations and may instruct that they be in effect retroactively, provided that the contractor is compensated for any increase in wages. The Department has interpreted this provision to authorize the incorporation of missing contract clauses as well as missing wage determinations.

Existing regulations do not state that agencies can take action on their own initiative to incorporate the correct WD, and some agencies have questioned whether they have the authority to do so.

The regulation also does not expressly state that the provision applies to Related Act contracts as well as direct DBA contracts.

The existing version of § 1.6(f) does not contain any deadlines for contracting agencies to take the required actions.

The final rule revises the treatment of omitted wage determinations in § 1.6(f) and adds new language at § 5.6(a)(1) to expressly require the incorporation of any omitted contract clauses.

§ 1.6(f) and § 5.6(a)(1) contain parallel provisions that clarify that contracting agencies also have the authority to retroactively modify contracts to include missing correct WDs (but if they do, they must notify the Administrator) and contract clauses, and that the provisions extend to Related Act contracts as well as direct DBA contracts.

The final rule includes a deadline of 30 days from the Administrator’s request for contracting agencies to take the required actions. The final rule continues to require compensation to the contractor when the clauses and/or WDs are retroactively incorporated.

Finally, the final rule contains new language instructing agencies that before they terminate a contract with missing contract clauses or wage determinations, they must withhold, cross-withhold, or otherwise identify and obligate sufficient funds through a termination settlement agreement to pay any necessary back wages.

§ 5.5(a)(1)

§ 5.5(e)

§ 3.11(e)

The final rule includes a provision at § 5.5(e) that makes contract clauses and wage determinations effective by operation of law even where they have been mistakenly omitted from a contract.

The final rule also revises the contract clause at § 5.5(a)(1) to state that wage determinations are effective by operation of law pursuant to the new operation-of-law provision at § 5.5(e) even if they have not been attached to the contract.