Applicability to the Federal-Aid Highway Projects

Applicability to the Federal-Aid Highway Projects

7) What are the “Davis-Bacon Related Acts (DBRA)?”

The Davis-Bacon Related Acts are those Acts extending the Davis-Bacon Act provisions to Federal agencies that provide financial assistance for public works construction through grants, loans, loan guarantees, and insurance. The Federal-aid Highway Acts extended the Davis-Bacon Act provisions to Federally funded construction contracts on Federal-aid highways in the 50 United States, the District of Columbia, Guam, Puerto Rico, the Virgin Islands or other territories.

29 CFR 5.1(a)
23 U.S.C. 113

8) What are the Davis-Bacon labor standard clauses that must be included in a covered contract?

The Davis-Bacon Act requires contracting agencies to insert in full on any covered contract the clauses in the regulations at 29 CFR 5.5(a). If a contracting agency has a specific need which requires they modify the clauses, they can do so provided, that such modifications are first approved by the Department of Labor (USDOL). For Federal-aid highway construction projects, the contract clauses required by 29 CFR 5.5(a) are included in Form FHWA-1273 which is required to be physically incorporated in every prime contract and all subcontracts. The required contract clauses address the following topics:

1. Minimum wages.
2. Withholdings.
3. Payrolls and basic records.
4. Apprenticeships and trainees.
5. Compliance with Copeland Act requirements.
6. Subcontracts.
7. Contract termination; debarment.
8. Compliance with Davis-Bacon and Related Act requirements.
9. Disputes concerning labor standards.
10. Certification of eligibility.

40 U.S.C. 3142(c)
29 CFR 5.5(a)

9) Are prevailing wage rate requirements applicable to highway construction projects on Federal-aid highways, as defined in the 23 U.S.C. 113 ?

The prevailing wage rate requirements apply to any Federal-aid highway construction project (regardless of Federal-aid funding source) over $2,000 that is:

1. Located physically within the existing right-of-way of a Federal-aid highway (defined in 23 U.S.C. 101 as "... a highway eligible for assistance under this chapter other than highways classified as local roads or rural minor collectors.)
2. Located outside the physically existing right-of-way of a Federal-aid highway but is linked to or dependent upon a Federal-aid highway project based on proximity or impact (i.e. without the Federal-aid highway the project would not exist); or
3. Funded under the Transportation Alternatives Program (TAP) (except for projects carried out under the Recreational Trails Program set-aside).

Transportation Alternatives Program Guidance

10) May contracting agencies apply prevailing wage rate requirements to projects not located on a Federal-aid highway ?

Yes, although not required to do so contracting agencies may apply prevailing wage rate requirements to projects not located on a Federal-aid highway.

11) When a contracting agency uses Federal-aid funds for preliminary engineering, is the related construction project federalized thus making the prevailing wage rate requirements applicable to the construction contract?

NO. The prevailing wage rate requirements apply on a “contract basis.” A contracting agency may elect to use Federal-aid funds for the preliminary engineering phase of a project and 100% state funds for the construction phase. Since there are no Federal-aid funds in the construction phase contract, the prevailing wage rate requirements do not apply.

12) When a contracting agency “ties”- a Federal-aid funded project to a State or locally- funded project, do the prevailing wage rate requirements apply to all “tied” projects?

Some agencies “tie” or combine separate construction projects for bidding purposes to take advantage of economies of scale, thereby providing an incentive for contractors to provide more competitive bids for all contract lettings. In these cases, the projects are designed, constructed, and administered as separate projects.

• If the “tied” projects are awarded as separate contracts (each contract has its own performance bond, pay items, and separate and distinct funding sources .) and are ” tied” for the purpose of bidding and award, then the prevailing wage rate requirements only apply to the Federal-aid funded project or projects.
• If the “tied” projects are awarded as one contract , then the prevailing wage rate requirements apply to all projects since the contract is being funded as a Federal-aid project.

13) Do the prevailing wage rate requirements apply to force account contracts for emergency repair work performed by the following parties:

1. Contracts let by State or local government agencies using force account procedures?
   YES. The prevailing wage rate requirements apply to work performed by contractors and subcontractors on State or local government-let contracts using force account procedures.
2. Work performed by State or local government forces using the force account method?
   NO. The prevailing wage rate requirements apply to work performed by contractors or subcontractors. State or local government agencies are not considered contractors or subcontractors, therefore the prevailing wage rate requirements do not apply

29 CFR 5.2(h)
Memorandum June 26, 2008 (item3)

14) Do the prevailing wage rate requirements apply to contracts for emergency repair work solely for debris removal?

NO. Prevailing wage rate requirements do not apply to contracts where the scope of work is solely for the removal of debris and related clean up; however, if the debris removal is performed in conjunction with other repair or reconstruction work, prevailing wage rate requirements apply.

Memorandum June 26, 2008 (item3)