From U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210
August 25, 2006
Dwight A. Home, Director
Office of Program Administration, HIPA-30
U.S. Department of Transportation
Federal Highway Administration
1200 New Jersey Avenue, SE
Washington DC 20590
Dear Mr. Horne:
This is in response to your request for our view regarding the applicability of the Davis-Bacon and related Acts (DBRA) provisions to contracts that are solely for "debris removal work" under the Federal-aid Highway Emergency Relief program. (Reference is to 23 C.F.R. Part 668, regulations issued under statutory authority of 23 U .S.C. 1 0 1, 120(3), 125 and 315).
Davis-Bacon labor standards apply to Federal-aid highway projects pursuant to the provisions of 23 U .S.C 113.1 Section 113(a), the Davis-Bacon related Act clause, provides that:
(a) The Secretary [of Transportation] shall take such action as may be necessary to insure that all laborers and mechanics employed by contractors or subcontractors on the construction work performed on highway projects on the Federal-aid highways authorized under the highway laws providing for the expenditure of Federal funds upon the Federal-aid systems, shall be paid wages at rates not less than those prevailing on the same type of work on similar construction in the immediate locality as determined by the Secretary of Labor in accordance with sections 3 141-3 144, 3 145, and 3 147 of title 40.
As defined in Department of Labor regulations, 29 C.F .R. 9 5.2:
j) The terms construction, prosecution, completion, or repair mean the following: (1 ) All types of work done on a particular building or work at the site thereof, including work at a facility which is deemed a part of the site of the work within the meaning of (paragraph (I) of this section by laborers and mechanics employed by a construction contractor or construction subcontractor( or, under the United States Housing Act of 193 7; the Housing Act of 1949; and the Native American Housing Assistance and Self-Determination Act of 1996, all work done in the construction or development of the project), including without limitation-- (i) Altering, remodeling, installation (where appropriate) on the site of the work of items fabricated off-site; (ii) Painting and decorating;
In general, DBRA requirements would not apply where the only work on a project is the removal of debris (and related clean-up) from a roadway or public right-of-way. However, debris removal performed in conjunction with construction, alteration, or repair work (such as highway resurfacing, re-grading, significant earthmoving, bridge repairs, etc.) would be covered by DBRA requirements.
Also, under most Davis-Bacon "related Act" provisions - including 23 U.S.C. 1 13, the Davis- Bacon labor standards requirements do not apply to State or local government agency employees who perform construction work under what is generally known as "force account" - where the agency receiving the grant decides not to contract out the work but actually performs it "inhouse" with its own employees. Such work is not generally subject to the Davis-Bacon labor standards because governmental agencies (such as States or their political subdivisions) are not considered "contractors" or "subcontractors" within the meaning of the Davis-Bacon Act.
This transmittal is for general information and is not to be considered in the same light as official statements of position contained in the regulations.
Timothy J. Helm
Office of Enforcement Policy Government Contracts
Office of Enforcement Policy
Government Contracts Team
1 Laws regarding highways are codified in Title 23 of the U.S. Code, which contains statutory provisions regarding "Highways." Chapter 1 focuses on Federal- Aid Highways, and in Chapter 1, Subchapter 1 contains "General Provisions," including section 113.