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MEMORANDUM
Subject: Utility and Railwork - Wage Rate and EEO Requirements Date: May 15, 1985
From: Dowell H. Anders
Acting Chief Counsel
Refer To: HRC-08
To: Mr. Rex C. Leathers
Associate Administrator for Engineering and Operations (HEO-1)

You have requested that we review our January 21, 1983 opinion that held that Davis-Bacon wage rates and EEO requirements are applicable to railroad and utility adjustment contracts paid for with Federal highway funds. We have also received other requests for reconsideration directly from the field.

Upon a further review of the matter, we have now determined that Davis-Bacon wage rates and EEO requirements are not applicable to utility-let contracts and railroad-let contracts because the work to be accomplished is for the accommodation of Federal-aid highway projects which benefit the public and not the utilities and railroads. Payment for relocation work performed by the utilities and railroads is in the nature of compensation for the relocation in order to accommodate highway construction and in this sense are not "highway projects" requiring imposition of Davis-Bacon wage rates under 23 U.S.C. 113, nor are they receiving "Federal financial assistance" requiring imposition of EEO provisions. A memorandum of law discussing our reasoning is attached.

The January 21, 1983 opinion that holds otherwise is withdrawn. Further, the Labor Compliance Manual (1979) will be amended to reflect this change.

/s/ original signed by
Dowell H. Anders
May 15, 1985

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Updated: 04/07/2011
 

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