Davis-Bacon Prevailing Wage Exclusions
Exceptions to coverage.
- Section 4 of the DBA provides that “this Act shall not be construed to supersede or impair any authority otherwise granted by [f]ederal law to provide for the establishment of specific wage rates.” Thus, for example:
- If a railroad undertakes to perform a contract normally subject to DBRA, coverage is not extended to employees of railroad common carriers if they are covered by the Railway Labor Act. However, if the railroad contracts out such construction work, laborers and mechanics employed by contractors or subcontractors are covered.
- While the DBA contains no express exemption for common carriers, coverage is not extended to common carriers who are hauling over regularly scheduled routes in accordance with published tariff rates and pursuant to a bill of lading. On the other hand, transportation of materials from an exclusive borrow pit to fulfill the specific needs of a construction contract would not normally be within the common carrier exception since such transportation is not normally carried out over a regularly scheduled route in accordance with published tariff rates and pursuant to a bill of lading.
- Under the terms of certain authorizing statutes, DBRA does not apply to construction of less than a designated number of housing units. For example:
- Section 110 of the Housing and Community Development Act of 1974: rehabilitation of residential property designed for fewer than eight families
- Section 802 of the Housing and Community Development Act of 1974: construction of residential property designed for fewer than eight families
- Section 12 of the U.S. Housing Act of 1937: fewer than nine units
- Sections 212, 220, and 233 of the National Housing Act: fewer than 12 units
- Sections 212, 221, and 235(j) (1) of the National Housing Act: fewer than eight families
- Section 287 of the Cranston-Gonzalez National Affordable Housing Act of 1990: fewer than 12 units
- Section 14 of the United States Housing Act of 1937 established the Comprehensive Improvement Assistance Program (CIAP), under which HUD provides financial assistance to public housing agencies for improvement of existing public housing projects and upgrading of the management and operation of such projects. Section 12 of that act sets forth the labor standards which must be contained in any contract for loans, annual contributions, sale or leases pursuant to the act, and provides that (1) all laborers and mechanics employed in the development of a CIAP-funded lower income housing project be paid DBRA wages, and (2) all maintenance laborers and mechanics employed in the operation of such a project be paid wages prevailing in the locality as established by HUD. While most CIAP-funded work items are developmental for purposes of prevailing wage rate determinations and are therefore subject to DBRA, certain work items (non-routine maintenance, formerly referred to by HUD as major repairs), in addition to routine maintenance, are recognized as operational and are subject to HUD-determined (not DBRA) rates. HUD has issued guidance to its field offices and public housing agencies (see 24 CFR 968.105 and 24 CFR 968.110), which distinguishes work items subject to HUD-determined or to DBRA prevailing wages. In essence, repair or replacement necessitated by normal wear and tear over time is to be considered operational and outside the coverage of DBRA, provided that the work is not so substantial as to constitute reconstruction. Thus, conversion of equipment or premises and replacement or alteration of property which results in betterment and involves significant construction activity is subject to DBRA. Any questions on the proper classification of particular work items subject to DBRA under CIAP which cannot be resolved locally with HUD will be referred though channels to the RWS and National Office (NO), if necessary. The WHD does not enforce HUD-determined wage rates under CIAP.
- Construction projects administered by the Farmers Home Administration and funded under the Community Facility Program of the Farm and Rural Development Act of 1972 or under section 515, Title V of the Housing Act of 1949, as amended by the Housing and Community Development Act of 1974, do not contain DBA labor standards and are not covered if there is no other federal assistance containing DBA labor standards.
- Projects solely funded under the Land and Water Conservation Fund Act of 1965 or under the Colorado River Basin Project Act are not covered.
Waivers of coverage.
- DOL does not have the authority to grant waivers from DBA coverage of a contract to which the government is a direct party or from a federally assisted (i.e., DBRA) contract. However, in some cases, the particular DBRA statute funding the project may specifically provide for a waiver or an exemption by the administering agency from the provisions of the DBA.
- Pursuant to authority under section 107 of the Housing and Community Development Act of 1974, as amended (42 USC 5307(e)(2)), the Secretary of HUD has waived the DBRA/CWHSSA labor standards requirements in connection with Community Development Block Grants for Indian Tribes and Alaskan Native villages.
