Enacted in 1931, the Davis-Bacon Act applies when the federal government or the District of Columbia is a party to construction or repair contracts in excess of $2,000. 40 U.S.C. 3141 et seq. Under the Act, prime contractors and any lower-tier contractors must pay laborers and mechanics working on a site the prevailing wages listed in the applicable Davis-Bacon wage determination.
The requirements of the Act extend beyond contracts involving the federal government or the District of Columbia through what are known as “Related Acts”—the approximately eighty statutes that apply the Davis-Bacon standards to construction involving the use of federal funds, whether through grants, loans, loan guarantees, or insurance. Collectively, these statutes are lumped with the Act, and it is common to see the umbrella term “Davis-Bacon and Related Acts” or DBRA. As an example of one such statute, the Clean Water Act requires applying the Davis-Bacon wage requirements to federally funded “treatment works.” 33 U.S.C. 1372 . A full list of Davis-Bacon and Related Acts is available through the United States Department of Labor (DOL) here.
The United States Department of Labor (DOL) is responsible for overall enforcement of the Act. Local governments, as recipients of federal funding for construction, also have an important role in administration and enforcement of applicable labor standards. This blog post, which is structured in a question and answer format, explains the basic administration of the Davis-Bacon Act, how its requirements apply to local governments, and suggestions for ensuring compliance. Additionally, a checklist for local government compliance is available here.
How is the Davis-Bacon Act administered?
The DOL determines prevailing wages, issues regulations for federal agencies that award or fund covered projects and oversees enforcement of the Davis-Bacon labor standards. The DOL has published rules about the Act and other labor laws in the Code of Federal Regulations (C.F.R.). These regulations can be found in the C.F.R. at Title 29, Subtitle A.
This blog focuses on Parts 1, 3, and 5 of Title 29, Subtitle A of the C.F.R., which cover how the DOL establishes and publishes Davis-Bacon wage determinations, the Copeland “Anti-Kickback” Act requirements for payroll deductions and the submission of weekly certified payrolls, and the required labor standards contract clauses for contracts covered by the Davis-Bacon and Related Acts.
What are prevailing wages and wage determinations?
The prevailing wage is the minimum wage rate that must be paid to anyone performing work in certain construction categories. Wage determinations are issued for four types of construction categories: building, residential, highway, and heavy. This Department of Labor memorandum offers guidance on the meaning of each category of construction.
The Davis-Bacon wage determination is a listing of different work classifications (e.g., carpenter or bulldozer operator) and the accompanying prevailing wage as determined by the DOL.
Where can I find wage determinations?
Davis-Bacon wage determinations are published on the System for Award Management (SAM) website here. Information about how to interpret wage determinations is available through the DOL here.
How are prevailing wages determined?
The Davis-Bacon Act requires the Secretary of Labor to determine the prevailing wage and fringe benefit rates in a given geographical area. To determine these rates, the DOL’s Wage and Hour Division (WHD) obtains and compiles wage rate information through a voluntary survey program. Wage determinations are typically made on a county-by-county basis.
What is the difference between a general wage determination and a project wage determination?
The DOL issues two types of wage determinations: general determinations, also known as area determinations, and project determinations. Note that the term “wage determination” includes not only the original decision but any subsequent decisions modifying, superseding, correcting, or otherwise changing the rates and scope of the original decision.
A general wage determination reflects those rates determined by the WHD through its survey to be prevailing in a specific geographic area for the type of construction described. On the other hand, a project wage determination is applicable to a named project only and is issued at the specific request of a contracting agency (using a Standard Form (SF) 308). Most Davis-Bacon wage decisions used by local governments are general wage decisions, but a small scope of work could necessitate a project wage determination. Project wage determinations from the DOL are typically issued at least 30 days after a request and remain effective for 180 days from issuance.
If a wage determination is revised, which version of the wage determination applies?
According to 29 CFR 1.6(c), the answer to this question depends primarily on the timing of the revision and the procurement method.
For sealed bid procurements, a revised wage determination applies to the solicitation and contract if it was issued at least ten calendar days before the bid opening. Even if the revised wage determination is issued less than ten calendar days before bid opening, it still applies unless the soliciting agency determines that there is not reasonable time to notify bidders and the agency documents this in a report included in the contract file. And, if the contract is not awarded within 90 days after bid opening, the revised wage determination applies. If the procurement is not sealed bid, the revised wage determination applies to the project if the DOL issued the revision before the contract award.
What this means for local governments is that the wage determinations for a project should be confirmed for sealed bid procurements 10 calendar days before bid opening and at the time of bid opening. For procurements that are not sealed bid, local governments must confirm the wage determinations before the award of the contract.
Generally, if a wage determination is revised after contract award, it does not apply to the project. Stated differently, the wage determination that was included with a solicitation and awarded contract remains the same for the duration of the contract. However, a revised wage determination must be used if the contract is modified either (1) to include additional, substantial construction, alteration, or repair work that was not within the scope of the original contract, or (2) to require the contractor to perform work for an additional period not originally obligated. Thus, local governments should be mindful of whether change orders or other contract amendments require implementing revised wage determinations.
Does the Davis-Bacon Act apply only to the construction or repair of buildings?
No. The Davis-Bacon Act applies to many other types of construction or repair. Pursuant to 29 C.F.R. 5.2, the term “building or work” includes construction activities of all types, including but not limited to buildings, structures, and improvements of all types, such as bridges, dams, solar panels, wind turbines, broadband installation, installation of electric car chargers, highways, parkways, streets, subways, tunnels, sewers, mains, power lines, pumping stations, heavy generators, railways, airports, scaffolding, drilling, blasting, excavating, clearing, and landscaping. The term “building or work” also includes a portion of a building or work, or the installation of equipment or components into a building or work.
What does my unit of government need to do to comply with the Davis-Bacon Act?
As an initial matter, local governments need to understand when the requirements of the Davis-Bacon Act apply. Not all federally funded construction or repair work implicates the Davis-Bacon Act. For example, the requirements of the Davis-Bacon Act do not apply to procurements under FEMA’s Public Assistance or Hazard Mitigation Assistance programs. The best places to find information about the applicability of the Davis-Bacon Act requirements are funding notices and federal agency guidance documents.
Assuming the Davis-Bacon Act wage requirements apply, local governments should envision their responsibilities in alignment with the stages of a procurement process: pre-solicitation, solicitation, contract award, and contract management. This section describes the requirements, and a checklist is available here for more succinct guidance.
At the pre-solicitation and solicitation stage, a local government—as the contracting agency—must make the initial determination of the appropriate wage determinations for a project and incorporate these wage determinations into bid solicitations and contract specifications. 29 C.F.R. 1.6(b)(1). As mentioned earlier, local governments must also confirm wage determinations ten calendar days before bid opening and at the time of bid opening for sealed bid procurements and before award for procurements that are not sealed bid.
Once a local government is ready to award the contract, it must take several more steps. First, the local government should confirm the wage determinations again. Second, local governments must draft the contract to incorporate the wage determinations and to include specific contract clauses found in 29 C.F.R. 5.5. Although federal regulations allow for the contract clauses to be inserted into contracts “by reference,” it is advisable to include the contract clauses in full so that contractors are aware of the provisions. For example, contractors need to know that they must include in any subcontracts the applicable wage determinations and contract clauses required by the Davis-Bacon Act.
After the contract has been awarded and construction is underway, the local government must monitor labor standards compliance. Typically, this monitoring is done by conducting interviews with laborers and mechanics at the project site and reviewing certified payrolls. Federal agencies give varied guidance about conducting interviews. Overall, though, the purpose of the interview is to ensure that the work being done by workers on the site is consistent with the corresponding job titles and wages being reported on the certified payrolls. As an example of federal agency guidance, HUD encourages using on-site interviews as a proactive enforcement tool rather than to meet a “representative sampling” quota. According to HUD’s Davis-Bacon and Labor Standards Agency/Contractor Guide, in determining who to interview, contracting agencies are encouraged to target projects or groups of workers where violations are suspected or alleged. HUD also provides an employee interview form, Form HUD-11, designed to document information critical for monitoring. The DOL also provides guidance on conducting DBRA monitoring, including standards for interview statements. Regardless of the form, information collected through interviews ultimately must be compared to the corresponding contractor and subcontractor certified payrolls to verify the accuracy of the payroll information.
What do contractors need to do to comply with the Davis-Bacon Act?
The principal or prime contractor is responsible for full compliance with labor standards by all employers on the project—meaning the contractor itself, subcontractors, and any lower-tier subcontractors. Accordingly,the prime contractor must do the following:
- Pay or ensure payment of Davis-Bacon wages to all laborers and mechanics employed on the site of the work, which can be (but is not required to be) reported using the Weekly Certified Payroll Form (WH-347);
- Post the Davis-Bacon employee rights poster (WH-1321) and applicable Davis-Bacon wage determinations in a prominent and accessible place at the work site;
- Pay or ensure payment of all mechanics and laborers at least once per week in compliance with the Contract Work Hours and Safety Standards Act (see below);
- Prohibit deductions or rebates from wages earned by laborers and mechanics in compliance with the Copeland Anti-Kickback Act (see below); and
- Include or ensure inclusion of labor standards contract clauses in all subcontracts.
According to the DOL, prime contractors often fail to include labor standards contract clauses in subcontracts. When this happens, the subcontractor’s workers are still entitled to the prevailing wages, and the prime contractor—rather than the subcontractor—will be responsible for paying the appropriate prevailing wages.
What is the Davis-Bacon Act’s relationship to the Contract Work Hours and Safety Standards Act (CWHSSA) and what does the CWHSSA require?
The CWHSSA applies to federally funded construction contracts of $100,000 or more to which Davis-Bacon wage requirements also apply. 40 U.S.C. 3701(b)(1). Stated differently—and to answer the question above—if Davis-Bacon wage requirements apply to a contract of $100,000 or more, the CWHSSA applies.[1]
The CWHSSA establishes that laborers and mechanics must be paid based on a 40-hour workweek when they are employed by any contractor or subcontractor performing work under a CWHSSA covered contract. Additionally, if these laborers and mechanics work in excess of 40 hours in a workweek, they must be paid one and one-half their standard rate of pay. 40 U.S.C. 3702(a). Finally, federal regulations require that specific CWHSSA contract clauses are inserted into covered contracts; these clauses can be found in full at 29 C.F.R. 5.5.(b).
What is the Davis-Bacon Act’s relationship to the Copeland Act and what does the Copeland Act require?
The Copeland Act, often referred to as the Copeland “Anti-Kickback” Act, is situated in a portion of the United States Code on “Extortion and Threats” and prohibits contractors and subcontractors on federally funded public works projects from forcing workers on the projects to give up wages that they are due. 18 U.S.C. 874. The implementing regulations for the Copeland Act are found in Part 3 of Title 29 of the Code of Federal Regulations. Due to the overlap of the dollar thresholds and definitions in the implementing regulations of both the Copeland Act and the Davis-Bacon Act, the Copeland Act applies whenever the Davis-Bacon Act wage requirements apply.
Pursuant to the Copeland Act, federal regulations also require contractors and subcontractors to submit weekly certified payroll records for the wages paid in the prior week and a statement of compliance certifying the accuracy of the weekly payroll information. 29 C.F.R. 3.3. Contractors typically satisfy the statement of compliance requirement by using the second page of Form WH-347.
What happens if the incorrect wage classification was used for a project and needs to be corrected?
According to federal regulations, the contracting entity must incorporate the correct wage determination retroactive to contract award (or the beginning of construction if there was no award) through a supplemental agreement or through a change order. 29 C.F.R. 1.6(f). In this case, the contractor must be compensated for any increases in wages resulting from such change. Alternatively, the contracting entity can terminate and resolicit the contract with the valid wage determination.
What are the consequences for non-compliance by a contractor?
Contractors can face significant consequences for violating Davis-Bacon wage requirements, the CWHSSA, and the Copeland Act. Actions authorized under the federal regulations for non-compliance include withholding funds on the covered contract, withholding funds on other contracts held by the same contractor (referred to as “cross-withholding”), prosecution of federal crimes by the United States Attorney General, restitution, and debarment from federal and federally funded contracts.
What changes were made to the Davis-Bacon Act regulations in 2023?
In 2023, the DOL published a final rule that significantly revised portions of the Davis-Bacon Act regulations. This blog post reflects the revised regulations, except that it does not include information about any regulations that are subject to the injunction discussed below.
A comprehensive comparison of the prior version and the revised version of the regulations is available here. Relevant to procurement and contracting, the revised regulations clarify when wage determinations need to be updated after contract award, expand the definitions of “building,” “work,” and “site of work,” explain the liability of prime contractors and upper-tier subcontractors for violations, and describe the options if wage determinations or contract clauses are omitted from the contract.
However, some regulations included in the final rule were challenged and a nationwide injunction prohibits the DOL from enforcing them. See Associated General Contractors v. U.S. Department of Labor, No. 5:23-CY-0272-C (N.D. Tex. June 24, 2024). Specifically, the U.S. District Court for the North District of Texas concluded that the plaintiffs would be likely to succeed on the claim that the DOL exceeded its authority when it implemented an “operation of law” regulation, through which wage determinations apply to a project even if they were not included in the solicitation or contract. Furthermore, the Court found that the DOL contradicted the Davis-Bacon Act when it promulgated a regulation requiring prevailing wages be paid to truck drivers delivering materials to the site. At the request of the parties, the Court entered an order in February 2025 to stay proceedings in the case. The stay has been continued through 2025, and the parties are scheduled to submit a joint status report on February 2, 2026. It is possible that the DOL will rescind the final rule.
Where can I find additional information about the Davis-Bacon and Related Acts?
The DOL has numerous resources on its Davis-Bacon and Related Acts website here, including online training for government contracting officials. While some of the content is geared towards federal employees or federal contractors, this site is a helpful starting place. And, as always, you can reach out to colleagues on the purchasers’ listserv or contact me directly with questions.
[1] However, the CWHSSA does not apply to work where the federal assistance is only a loan guarantee or insurance. 40 U.S.C. 3701(b)(3)(B).
