Sep 27, 20233 min read

Davis-Bacon and Related Acts (DBRA) Changes For New Contracts Awarded After October 23, 2023.

Updated: Oct 2, 2023

The first changes in over 40 years to Davis-Bacon and Related Acts (DBRA) take effect for all new contracts awarded after October 23, 2023.

What is the DBRA?

Under the Davis-Bacon and Related Acts and Reorganization Plan No. 14 of 1950, the U.S. Department of Labor (DOL) is responsible for determining prevailing wages, issuing regulations and standards to be observed by federal agencies that award or fund projects subject to Davis-Bacon labor standards, and overseeing consistent enforcement of the Davis-Bacon labor standards.

The Davis-Bacon and Related Acts (DBRA) apply to DBRA-covered contractors and subcontractors performing on federally funded or assisted contracts in excess of $2,000 for the construction, alteration, or repair (including painting and decorating) of public buildings or public works. DBRA-covered contractors and subcontractors must pay their laborers and mechanics employed under the contract no less than the locally prevailing wages and fringe benefits for corresponding work on similar projects in the area. The Davis-Bacon Act directs the DOL to determine such locally prevailing wage rates. The Davis-Bacon Act prevailing wage provisions apply to the “Related Acts,” under which federal agencies assist construction projects through grants, loans, loan guarantees, and insurance.

For prime contracts in excess of $100,000, contractors and subcontractors must also, under the provisions of the Contract Work Hours and Safety Standards Act (CWHSSA), as amended, pay laborers and mechanics, including guards and watchmen, at least one and one-half times their regular rate of pay for all hours worked over 40 in a workweek. The overtime provisions of the Fair Labor Standards Act (FLSA) may also apply to DBA-covered contracts.

What is changing?

On August 23, 2023, the Department of Labor (DOL) published a final rule at: https://www.federalregister.gov/documents/2023/08/23/2023-17221/updating-the-davis-bacon-and-related-acts-regulations

In summary, the final rule updates Title 29 of the Code of Federal Regulations (CFR) parts 1, 3, and 5, to --

a) Update the definition of "prevailing wage" and return to the original methodology for determining whether a wage rate is prevailing, referred to as the “three-step process.”

(1) any wage rate paid to a majority of workers; and, if there was none, then

(2) the wage rate paid to the greatest number of workers, provided it was paid to at least 30 percent of workers, and, if there was none, then

(3) the weighted average rate.

(The second step has been referred to as the “30-percent rule” and had been eliminated in 1982.)

b) Outline procedural processes for consideration and implementation of functionally equivalent rates, Collective Bargaining Agreements (CBAs), wages where performance covers multiple counties, and use of State department of transportation highway districts or other similar State “geographic” subdivisions to determine applicable wages.

c) Clarify the definition of “type of construction” or “construction type” to mean the general category of construction as established for the publication of general wage determinations. The new language provides examples of types of construction, including building, residential, heavy, and highway, consistent with the four construction types currently used by DOL in general wage determinations, but did not exclude the possibility of other types.

Generally, wage determinations apply for the life of the contract. The final rule, however, clarifies that , if a contract is modified to include additional, substantial construction, alteration, and/or repair work not within the scope of work of the original contract or order, or requires the contractor to perform work for an additional time period not originally obligated, including where an agency exercises an option provision to unilaterally extend the term of a contract, then the most recent version of any applicable wage determination(s) must be incorporated into the contract.

How Do I Find Out More?

DOL published a comparison chart between current Davis-Bacon and Related Acts (DBRA) provisions and those that become effective for new contracts entered into after October 23, 2023. The chart can be found at: https://www.dol.gov/agencies/whd/government-contracts/construction/rulemaking-davis-bacon/dba-comparison-charts

DOL has also published a list of Frequently Asked Questions (FAQs) found at: https://www.dol.gov/agencies/whd/government-contracts/construction/rulemaking-davis-bacon/faqs

Video and slide presentations by the DOL Wage and Hour Division (WHD) about DBRA topics to include slides from the most recent overview (when available) can be found at: https://www.dol.gov/agencies/whd/government-contracts/construction/presentations

Who Do I Contact For Help?

For help understanding the law, questions, and technical assistance with any WHD topic, contact DOL at 1-866-487-9243 or find your local office. Email requests to DOL may experience delayed responses. DOL encourages you to call for the best response time.

Reference Materials from DOL WHD