Biden Administration Unveils Changes to Davis-Bacon Act Regulations

What’s happening: The U.S. Department of Labor (DOL) Aug. 8 finalized significant regulations under the Davis Bacon Act (DBA), the prevailing wage law for direct federal and federal-aid projects.

In March 2022, DOL proposed updates to the DBA’s regulations. ARTBA and other industry groups filed individual comments on DOL’s proposed rule, supporting some of the rule’s objectives in principle, while disagreeing with other parts.

Why it matters: While portions remain problematic, the final rule was responsive to and specifically referenced some of ARTBA’s comments. These modifications include:

• The initial proposal expanded DBA coverage beyond active project sites. The rule released today narrows the scope of coverage to locations where a significant portion of work is performed, and where the site is established for the exclusive performance of the covered contract.
• DOL at first proposed requiring prevailing wages for the time that off-site drivers and materials providers spend on the worksite, even if that time is negligible. This provision was omitted.
• The final rule clarifies the difference between licensed surveyors that are salaried professionals – and not subject to the DBA – and workers surveying on sites.
• DOL proposed redefining the term “area” for highway construction projects. DOL now allows multi-county wage data to be combined and used to calculate the prevailing wage.

Additional provisions of note:

• DOL will be permitted to issue wage determinations when survey data is insufficient. As a result, wage determinations can be based on factors that may not paint the entire wage picture.
• The prevailing wage will now be set if it’s paid to at least 30 percent of surveyed workers in a given area. This is a change from the current 50 percent and may result in wage rate increases.
• Prime contractors are responsible for DBA compliance by subcontractors and will be liable if subcontractors don’t pay a prevailing wage.

What’s next: The rule takes effect 60 days after publication in the Federal Register. ARTBA will provide further input on the rule once the association completes a more exhaustive review. Members interested in discussing the rule further may contact ARTBA’s Prianka Sharma.