Davis-Bacon Rulemaking Enters Public Comment Period

The U.S. Department of Labor today announced the publication of a Notice of Proposed Rulemaking as it considers updating the regulations that implement the Davis-Bacon Act and Related Acts to better reflect the needs of workers in the construction industry and planned federal construction investments. 

According to the Department of Labor, the proposed rulemaking represents the most comprehensive review of the Davis-Bacon Act regulations in 40 years. The proposal seeks to speed up prevailing wage updates, creating several efficiencies in the current system and ensuring prevailing wage rates keep up with actual wages. 

VTCA is working closely with ARTBA’s staff to evaluate the impact of the proposed changes on our members and prepare a response during the public comment period. 

A few of the key elements of the 462-pages of proposed updates to the regulations include: 

• Expands the definition “area” of a project to specifically address highway projects, allowing the use of a single wage rate for highway projects spanning more than one county. The proposal would allow the use of State highway districts “or similar transportation subdivisions” in determining wages for these projects. 
• A return to the definition of “prevailing wage” that DOL used from 1935 to 1983. Currently, a single wage rate may be identified as prevailing in the area only if it is paid to a majority of workers in a classification on the wage survey; otherwise, a weighted average is used. The proposal reinstates the “three-step” method in effect before 1983. Under that method (also known as the 30-percent rule), in the absence of a wage rate paid to a majority of workers in a particular classification, a wage rate will be considered prevailing if was paid to at least 30 percent of such workers. If no single wage rate is paid to at least 30 percent of workers in a classification an average rate will be used.
• Adopting state or local wage determinations as the Davis-Bacon prevailing wage where certain specified criteria are satisfied. 
• Expanding the scope of coverage under the DBA by: 
  • revising the definition of “site of the work” to further encompass certain construction of significant portions of a building or work at secondary worksites, including off-site construction modules. 
  • expanding the definition of “building or work” to include facilities that will be used by the federal government, even if the government won’t own those facilities. 
  • extends DBA coverage to “transportation” on or to and from the construction site – this would include drivers on the work site. 

VTCA is coordinating efforts with ARTBA to submit comments on the rulemaking. If you have specific questions or concerns, you are encouraged to participate in the public comment period as well as contact VTCA (Tom Witt) with questions or comments. 

Interested persons are invited to submit written comments on this notice of proposed rulemaking (NPRM) on or before May 17, 2022.  Electronic comments can be submitted through the Federal eRulemaking Portal.