What is the Federal Davis-Bacon and Related Acts?
General and Statutory Provisions: DBRA
- This chapter supplements 29 CFR 1, 29 CFR 3, and 29 CFR 5 -7, pertaining to a group of statutes generally identified as the Davis-Bacon and Related Acts (DBRA) and the Contract Work Hours and Safety Standards Act (CWHSSA). Many related acts are listed in 29 CFR 1, Appendix A, and 29 CFR 5.1. The Davis-Bacon Act (DBA), the Copeland “Anti-Kickback” Act, CWHSSA, 29 CFR 1, 29 CFR 3, and 29 CFR 5 -7 are available at https://www.dol.gov/agencies/whd/government-contracts/construction or at https://beta.sam.gov/ in the Library.
- Under Reorganization Plan No. 14 of 1950 (64 Stat. 1267) the federal contracting or other administering agency has the primary responsibility for the enforcement of the DBRA/CWHSSA labor standards provisions included in its contracts. The Secretary of Labor (Secretary) has coordination and oversight responsibilities, including the authority to investigate labor standards compliance as warranted. Pursuant to the authority under the Reorganization Plan No. 14 of 1950, the Secretary has issued the regulations referenced in (a) to coordinate the administration and enforcement of DBRA/CWHSSA labor standards. All Agency Memorandum (AAM) No. 76, dated May 31, 1968 to agencies administering statutes referred to in 29 CFR 5, Subpart A, reflects an agreement between the DOL and the contracting agencies for administering the labor standards of DBRA/CWHSSA. AAM No. 118, AAM No. 129, and AAM No. 177 were subsequently issued to remind all contracting agencies of their labor standards enforcement responsibilities.
The Davis-Bacon Act.
This act applies to contracts in excess of $2,000 for the construction, alteration, and/or repair of public buildings or public works, including painting and decorating, where the United States (U.S.) or the District of Columbia (DC) is a direct party to the contract. The act requires all contractors and subcontractors to pay the various classes of laborers and mechanics employed on the site of the work on the contract the wage rates and fringe benefits determined by the Secretary to be prevailing for corresponding classes of employees engaged on similar projects in the locality. In addition, the act requires that certain labor standards provisions be specified in the contract awarded to the successful bidder (see 29 CFR 5.5 (a)). An applicable wage determination must also be included in the contract documents.
The Related Acts.
These are federal statutes which authorize federal assistance in the form of contributions, grants, loans, insurance, or guarantees for programs such as the construction of hospitals, housing complexes, sewage treatment plants, highways, and airports. Included in the language of these statutes are references to the DBA labor standards provisions and the requirement that laborers and mechanics be paid prevailing wage rates. Since Congress is continually enacting and amending legislation, the list of the DBRAs in the regulations may not be completely up to date. Consequently, it may be necessary to consult the regional office for verification of DBRA coverage.
The Contract Work Hours and Safety Standards Act.
- This act contains weekly (after 40 hours) overtime pay requirements and applies to most federal contracts which may require or involve the employment of laborers or mechanics, including watchmen and guards, and to which any agency or instrumentality of the U.S. or DC or a territory is a party. See FOH 15g. CWHSSA was amended by Pub. L. No. 99-145 (effective January 1, 1986) to eliminate the daily overtime provisions (AAM No. 143, December 23, 1985).
- Contracts for construction or services in excess of $100,000 are covered by CWHSSA. This act also extends to federally-assisted contracts subject to DBRA wage standards to which the federal government is not a direct party, except where the federal assistance is only in the nature of a loan guarantee or insurance.
- Contracts exempt from this act are discussed in FOH 15i00.
- Section 102 of CWHSSA requires that laborers and mechanics employed on covered contracts be paid not less than one and one-half times their basic rate of pay for hours worked in excess of forty in a workweek. It also provides for liquidated damages in the sum of $10 for each calendar day (with respect to each employee employed in violation) on which an employee was required or permitted to work overtime hours without the payment of overtime wages required by CWHSSA.
- Section 107 of the act provides health and safety standards on covered construction work which are administered by Occupational Safety and Health Administration (OSHA).
The Copeland “Anti-Kickback” Act.
- The “Anti-Kickback” section of the Copeland Act makes it punishable by a fine or by imprisonment up to 5 years, or both, to induce any person working on a federally-funded or assisted construction project to “give up any part of the compensation to which he is entitled under his contract of employment.” See Copeland “Anti-Kickback” Act and 29 CFR 3.
- Regulations pertaining to Copeland Act payroll deductions are contained in 29 CFR 3. Deductions permissible without application for approval by the Secretary are explained in 29 CFR 3.5; those which require approval are explained in 29 CFR 3.6. Note: in 29 CFR 3.5 certain deductions, including those which meet the requirements of FLSA section 3(m), 29 CFR 531, can be made without the consent of the Secretary. The Copeland Act and 29 CFR 3.3 -3.4 require the contractor or subcontractor to file a weekly “Statement of Compliance.” 29 CFR 5.5(a)(3)(ii) requires, as a contract stipulation, that the contractor submit weekly to the contracting agency a copy of all payrolls, along with a weekly “Statement of Compliance”. Contractors may use Optional Form WH-347, available at https://www.dol.gov/agencies/whd/forms/wh347 for this purpose.
- The willful falsification of a payroll report or “Statement of Compliance” may subject the employer to civil or criminal prosecution under 18 USC 1001 and 31 USC 3729 and may also be a cause for debarment.
- The “Anti-Kickback” provision applies to any federally-funded or assisted construction contract except contracts for which the only assistance is a loan guarantee. This provision applies even where the contract is not covered by a labor standards statute. 29 CFR 3, as explained above, applies only to payroll deductions made under contracts subject to federal wage standards.
The Miller Act.
- This act (see 40 USC 3131 -3133) provides, in general, that federal contracts in excess of $100,000 for construction, alteration, or repair of any public building or public work of the U.S., may not be awarded to any person, until such person furnishes to the U.S. a bond with a surety satisfactory to the contracting officer for the protection of all persons supplying labor and material in the prosecution of the work provided for in the contract.
- DOL exercises no functions under the Miller Act, but the information in this section is pertinent since the act provides protection to laborers and mechanics, and its application is coextensive with the DBA, except for the $100,000 threshold. In order to protect their rights under this act, employees of prime contractors or first-tier subcontractors must give written notice by registered mail to the prime contractor of failure to receive proper wages within 90 days of the date of performance of the last labor by the underpaid worker. Employees of lower tier sub-subcontractors are not protected by the act.
- Suits to recover wages under the Miller Act must be commenced within 1 year after the date on which the last of the labor was performed and must be brought in the name of the U.S., for the use of the person suing, in the U.S. District Court for any district in which the contract was to be performed and executed. Suit is brought and prosecuted by the worker’s own attorney. Although the Miller Act does not apply to federally-assisted projects (i.e., the related acts), many states and grant programs require surety bonds with substantially similar requirements.
