Davis-Bacon and Related Acts — Revisions to 29 CFR Parts 1, 3, and 5 (Important Dates)

Summary

Slides from the U.S. Department of Labor Wage and Hour Division on the Davis-Bacon and Related Acts Final Rule provisions, revisions to 29 CFR Parts 1, 3 and 5. The final rule takes effect October 23, 2023, with wage determination methodology changes applying to determinations completed after that date and most other provisions applying to contracts awarded after it. The slides explain the adoption of State or local wage rates, periodic adjustments of non-collectively bargained rates using Employment Cost Index data no more often than once every 3 years, and the updating of wage determinations after contract award.

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“Davis-Bacon and Related Acts — Revisions to 29 CFR Parts 1, 3, and 5 (Important Dates).” Original at www.ed.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/department-of-education-presentation-www-ed-gov-aa55753286/, SHA-256 aa76b718848658d0dc5f124ef648c36b6e60ddcae3d1fcc6b181f9e865bfbe58.

Full text

Davis-Bacon and Related Acts
Final Rule Provisions
Revisions to 29 CFR Parts 1, 3, and 5

dol.gov/agencies/whd
1-866-4-US-WAGE
Important Dates
• Effective Date - October 23, 2023
• Applicability Dates
• Part 1 provisions relating to wage determination
methodologies apply to wage determinations completed and
published after October 23, 2023
• 29 CFR 1.6(c)(2)(iii) provisions relating to updating wage
determinations after contract award apply to new and existing
contracts as of October 23, 2023
• All other provisions apply to contracts awarded after October
23, 2023

U.S. Department of Labor | Wage and Hour Division 2
Determining Applicable
Prevailing Wage Rates

U.S. Department of Labor | Wage and Hour Division 3
Adoption of State or Local Rates

• Wage rates determined for public construction by State
and/or local officials may be adopted, with or without
modification, provided that certain conditions are met.

• Methods and criteria used by State or local officials may
differ from those otherwise used by the Administrator.

U.S. Department of Labor | Wage and Hour Division 4
Periodic Rate Adjustments
• Adjustments to non-collectively bargained prevailing wage and
fringe benefit rates on general wage determinations based on
U.S. Bureau of Labor Statistics Employment Cost Index (ECI)
data or its successor data.
• Such rates may be adjusted based on ECI data no more
frequently than once every 3 years, and no sooner than 3 years
after the date of the rate’s publication.
• WHD will issue modifications to general wage determinations
with such adjusted rates.

U.S. Department of Labor | Wage and Hour Division 5
Updating Wage Determinations After Award

• After contract award, the contracting agency must include
the most recent applicable wage determination
modification(s) when:
• a contract or order is changed to include additional and
substantial work not within the scope of work of the original
contract, or to require the contractor to perform work for an
additional time period.
• an option to extend the term of a contract is exercised.

U.S. Department of Labor | Wage and Hour Division 6
Updating Wage Determinations After Award

• Where contracts require a general commitment to
perform necessary construction as the need arises, over
a period of time that is not tied to the completion of any
particular project, the contracting agency must
incorporate the most recent applicable wage
determination modification(s) on each anniversary date of
the contract’s award.

U.S. Department of Labor | Wage and Hour Division 7
Coverage

U.S. Department of Labor | Wage and Hour Division 8
Clauses Included by Operation of Law
• Regardless if the contracting agency fails to incorporate
the contract clauses and wage determination(s) into a
prime contract, the clauses and wage determination(s)
will still be considered part of that contract and will be
effective as a matter of law.
• Where the clauses and applicable wage determinations
are effective by operation of law, contracting agencies
must compensate the prime contractor for any increase
in wages in accordance with applicable law.

U.S. Department of Labor | Wage and Hour Division 9
Site of the Work – Secondary Sites
• Any site where a significant portion of a building or work
is constructed for specific use in that building or work, as
long as the site is either:
• established specifically for the performance of the
contract or project, or
• is dedicated exclusively, or nearly so, to the
performance of the contract or project for a specific
period of time.

U.S. Department of Labor | Wage and Hour Division 10
Site of the Work – Drivers

• Drivers who work for construction contractors are
covered for any time that is more than de minimis when
their work requires them to come on and offsite.
• The final rule clarifies that the total amount of time a
driver spends on the site of the work during a typical day
or workweek—not just the amount of time that each
delivery takes—is relevant to a determination of whether
the onsite time is de minimis.

U.S. Department of Labor | Wage and Hour Division 11
Material Suppliers Exception
• Exception applies if:
• The firm’s only obligation is to deliver supplies or equipment,
and
• Its facilities are not located on the project’s primary or
secondary construction site, and
• were either established before opening of bids or contract
award, or
• are not dedicated exclusively, or nearly so, to the
performance of the contract.

U.S. Department of Labor | Wage and Hour Division 12
Prime Contractor
• Prime contractor is broadly defined as any person or entity that
enters into a covered contract with an agency, including non-
profit organizations, owners/developers, borrowers or recipients,
project managers, or single-purpose entities.
• Prime contractor also includes the controlling shareholder or
member of any entity holding a prime contract, the joint venturers
or partners in any entity holding a prime contract, and any
contractor that has been delegated the responsibility for
overseeing all or substantially all of the construction anticipated
by the prime contract.

U.S. Department of Labor | Wage and Hour Division 13
Compliance Provisions

U.S. Department of Labor | Wage and Hour Division 14
Basic Records Requirements
• Contractors must now maintain workers’ last known
phone numbers and email addresses as part of their
required records.
• Contractors are also required to maintain contracts,
subcontracts, and related documents.

U.S. Department of Labor | Wage and Hour Division 15
Length of Record Retentions
• All required records must be maintained for at least
3 years after all work on the prime contract has been
completed.
• This requirement also applies to subcontractors, even
though the subcontractor’s work may be finished prior to
the completion of the prime contract.

U.S. Department of Labor | Wage and Hour Division 16
Certified Payrolls - Signatures
• Must be signed with a handwritten signature or a legally
valid electronic signature.
• Valid electronic signatures include any electronic process
that indicates acceptance of the certified payroll record
and includes an electronic method of verifying the
signer’s identity.

U.S. Department of Labor | Wage and Hour Division 17
Certified Payrolls – Submission Methods
• Contracting agencies and prime contractors can permit or require
contractors to submit their certified payrolls through an electronic
system, if:
• the electronic system requires a legally valid electronic
signature;
• other methods are permitted where a contractor may not be
able to use or access the electronic system; and
• the electronic system allows the contractor, the contracting
agency, and the Department to access the certified payrolls
upon request for at least 3 years after the work on the prime
contract has been completed.
U.S. Department of Labor | Wage and Hour Division 18
Enforcement Mechanisms

U.S. Department of Labor | Wage and Hour Division 19
Anti-Retaliation
• It is unlawful for any person to discharge, demote,
intimidate, threaten, restrain, coerce, blacklist, harass, or
in any other manner discriminate against, or to cause any
person to discharge, demote, intimidate, threaten,
restrain, coerce, blacklist, harass, or in any other manner
discriminate against, any worker or job applicant for
engaging in protected activity.

U.S. Department of Labor | Wage and Hour Division 20
Retaliation Remedies

• The Wage and Hour Division may require
contractors to provide appropriate relief to affected
worker(s) and job applicant(s) or take appropriate
remedial action, or both.

U.S. Department of Labor | Wage and Hour Division 21
Debarment
• The standard for DBA and Related Act debarments is
now the same.

• Debarment is for 3 years with no early removal from the
exclusion list for both DBA and Related Act.

U.S. Department of Labor | Wage and Hour Division 22
Resources

U.S. Department of Labor | Wage and Hour Division 23
WHD Resources
• DBRA Final Rule webpage - https://www.dol.gov/agencies/whd/government-
contracts/construction/rulemaking-davis-bacon
• Wage and Hour Division: http://www.dol.gov/agencies/whd/government-contracts
• WHD Protections for Workers in Construction under the Bipartisan Infrastructure Law:
https://www.dol.gov/agencies/whd/government-contracts/protections-for-workers-in-
construction
• Resource Book: http://www.dol.gov/agencies/whd/prevailing-wage-resource-book
• Office of the Administrative Law Judges Law Library:
https://www.dol.gov/agencies/oalj/topics/libraries/LIBDBA
• Prevailing Wage Topic videos: https://www.dol.gov/agencies/whd/government-
contracts/construction/presentations

U.S. Department of Labor | Wage and Hour Division 24
Disclaimer
This presentation is intended as general information only and does not carry the force
of legal opinion.
The Department of Labor is providing this information as a public service. This
information and related materials are presented to give the public access to
information on Department of Labor programs. You should be aware that, while we try
to keep the information timely and accurate, there will often be a delay between official
publications of the materials and the modification of these pages. Therefore, we make
no express or implied guarantees. The Federal Register and the Code of Federal
Regulations remain the official source for regulatory information published by the
Department of Labor. We will make every effort to keep this information current and to
correct errors brought to our attention.

U.S. Department of Labor | Wage and Hour Division 25

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