Prevailing Wage Requirements and the Emergency Suspension of the Davis-Bacon Act
CRS Report for Congress
Prevailing Wage Requirements and the
Emergency Suspension of the Davis-Bacon Act
February 16, 2006
John R. Luckey and Jon O. Shimabukuro
American Law Division
Congressional Research Service ˜ The Library of Congress
Prevailing Wage Requirements and the Emergency
Suspension of the Davis-Bacon Act
On September 8, 2005, President Bush issued a Proclamation suspending the
application of the Davis-Bacon Act to all contracts to be performed in specified
jurisdictions in Alabama, Florida, Louisiana, and Mississippi included in the
Hurricane Katrina disaster area. The Proclamation permitted the payment of less
than the locally prevailing wage on contracts entered into after September 8, 2005 for
the construction or repair of public buildings and public works in the affected area.
Although concern over the validity and effect of the Proclamation arose soon after
its issuance, that concern seemed to disappear once the President revoked the
Proclamation on November 3, 2005. This report provides background on the Davis-
Bacon Act and discusses the President’s September 8, 2005 Proclamation and its
revocation on November 3, 2005.
Effect of Proclamation..........................................4
Prevailing Wage Requirements and the
Emergency Suspension of the Davis-Bacon
On September 8, 2005, President Bush issued a Proclamation suspending the
application of the Davis-Bacon Act to contracts to be performed in the counties
included in the Hurricane Katrina disaster area.1 The Davis-Bacon Act, which dates2
back to 1931, requires every construction contract in excess of two thousand dollars
to which the federal government (or the District of Columbia) is a party to pay all
laborers and mechanics not less than the locally prevailing wage. Construction
includes the alteration or repair (including dredging, excavation, and painting) of3
buildings, structures, or other real property. Moreover, the term “construction” has
been found to include many types of activities that will be included in the recovery
from Hurricane Katrina such as contracts for improvements to bridges, dams,
highways, streets, subways, tunnels, sewers, power lines, cemeteries, pumping
stations, railways, airports, docks, piers, lighthouses, jetties, breakwaters, levees,
canals, and channels.
The Davis-Bacon Act reflects Congress’s interest in giving the government “the
power to require its contractors to pay their employees the prevailing wage scales in4
the vicinity of the building projects.” A prevailing wage is the rate of wages,
including fringe benefits, paid to a majority of workers in a geographic area for the5
same type of work on similar projects. The Department of Labor is responsible for
1 Proclamation 7924, 70 Fed. Reg. 54,227 (Sept. 8, 2005), available at
[http://www.whitehouse.gov/news/releases/2005/09/20050908-5.html]. The Proclamation
also applies to the operation of the so-called “related acts” to the extent they reference the
Davis-Bacon Act. Related acts provide financial assistance for construction projects and
require the payment of prevailing wages for workers on those projects.
2 Ch. 411, 46 Stat. 1494 (March 3, 1931). Codified at 40 U.S.C. §§ 3141 thru 3148.
3 40 U.S.C. § 3142(a).
4 S. Rep. No. 71-1445, at 1-2 (1931). For additional information on the Davis-Bacon Act,
see CRS Report 94-408, The Davis-Bacon Act: Institutional Evolution and Public Policy,
and CRS Report RL33149, Davis-Bacon Suspension and Its Legislative Aftermath, both by
William G. Whittaker. The Davis-Bacon Act establishes a wage floor for covered
construction. In practice, conditions may require contractors to pay a higher rate of wages.
5 40 U.S.C. § 3142(b).
issuing wage determinations that identify what the prevailing wage is for particular
occupations in a particular type of project in a particular jurisdiction.6
Under section 6 of the act, the President may suspend the requirements of the
act during a “national emergency.”7 Over its long history, the act has been suspended
several times for various types of national emergencies such as economic emergency
and natural disaster.8 Suspension of the act does not require that less than the
prevailing wage be paid on the covered contracts, but it does remove the bar to the
payment of such wages.
In addition to the Davis-Bacon Act itself, Congress has added prevailing wage
provisions to approximately thirty-eight statutes that provide financial assistance for
construction projects through grants, loans, and other funding mechanisms.9 These
6 Id. The Department of Labor regulations governing wage determinations may be found
at 29 C.F.R. parts 1 and 4. Amendments to these regulations, effective August 26, 2005,
provide for online request of wage determinations. 70 F.R. 50,888 (August 26, 2005).
Examples of prevailing wage determinations can be found at
[ h t t p : / / www.gpo.gov/ d avi s bacon/ al l s t a t e s.ht ml ] .
7 40 U.S.C. § 3147.
8 See Proclamation No. 4031, 36 Fed. Reg. 3,457 (February 25, 1971) (suspending the act
because of an economic emergency in the construction industry); Proclamation No. 6491,
57 Fed. Reg. 47,553 (October, 14, 1992) (suspending the act for contracts in the recovery
areas of Florida, Louisiana, and Hawaii in the wake of Hurricanes Andrew and Iniki in
1992). See also Proclamation No. 2487, 6 Fed. Reg. 2,617 (May 29, 1941) (declaring an
unlimited national emergency, which was in effect until terminated by Joint Resolution (ch.
327, § 3, 61 Stat. 451) in 1947). Although Proclamation No. 2487 itself did not specify the
Davis-Bacon Act as being suspended, the Joint Resolution terminating national emergencies
proclaimed by the President did list the Davis-Bacon Act.
9 See National Housing Act, 12 U.S.C. § 1715c; Housing Act of 1959, 12 U.S.C. §
General Education Provisions Act, 20 U.S.C. § 1232b; Education of the Deaf Act, 20 U.S.C.
§§ 4305(b)(4), 4332(b)(5); Federal-Aid Highway Act, 23 U.S.C. § 113(a); Indian Self-
Determination and Education Assistance Act, 25 U.S.C. § 450e; Indian Health Care
Improvement Act, 25 U.S.C. § 1633(b); Federal Water Pollution Control Act, 33 U.S.C. §
1372; Postal Reorganization Act, 39 U.S.C. § 410(b)(4)(C); National Visitors Center
Facilities Act of 1968, 40 U.S.C. § 808; Appalachian Regional Development Act of 1965,
40 U.S.C.App. § 402; Hospital Survey and Construction Act, 42 U.S.C. § 291e(a)(5); Safe
Drinking Water Act, 42 U.S.C. § 300j-9(e); Public Health Service Act, 42 U.S.C. §§ 300s-
1(b)(1)(I), 300t-12(b)(1)(D); U.S. Housing Act of 1937, 42 U.S.C. § 1437j; Demonstration
Cities and Metropolitan Development Act of 1966, 12 U.S.C. § 1715c, 42 U.S.C. §§ 3310,
1437j; Housing Act of 1964, 42 U.S.C. § 1486(f); Defense Housing and Community
Facilities and Services Act of 1951, 42 U.S.C. § 1592i; Headstart, Economic Opportunity,
and Community Partnership Act of 1974, 42 U.S.C. § 2992a; Atomic Energy Act, 42 U.S.C.
§ 2297g-3; Housing and Urban Development Act of 1965, 42 U.S.C. § 3107; Public Works
and Economic Development Act of 1965, 42 U.S.C. § 3222; Domestic Volunteer Service
Act of 1973, 42 U.S.C. § 5046; Robert T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. § 5196(j)(8); Housing and Community Development Act of 1974,
so-called “related acts” involve construction in areas such as transportation, housing,
air and water pollution reduction, and health. The Robert T. Stafford Disaster Relief
and Emergency Assistance Act, the federal statute that authorizes the Federal
Emergency Management Agency (“FEMA”) to provide funds for the repair and
reconstruction of facilities following a major disaster and for construction related to
emergency preparedness, includes a prevailing wage provision.10
Section 611(j)(8) of the Stafford Act references the Davis-Bacon Act to require
the payment of locally prevailing wages to laborers and mechanics employed on
construction projects related to emergency preparedness.11 Section 611(j)(8) does not
apply to repair or reconstruction projects involving state or local public facilities,
private nonprofit facilities, and owner-occupied private residences following a major
disaster.12 These projects are funded by other sections of the Stafford Act, which are
not affected by the prevailing wage requirements of section 611(j)(8). In 2002, one
proposal for the establishment of a homeland security agency included a provision
that would have arguably required the payment of prevailing wages for workers on
these kinds of projects.13 However, the prevailing wage language in this proposal
was not included in the final version of the homeland security measure.
Public Works Employment Act of 1976, 42 U.S.C. §§ 6708, 6728; Energy Conservation and
Production Act, 42 U.S.C. § 6881(h); Solid Waste Disposal Act, 42 U.S.C. § 6979; Clean
Air Act, 42 U.S.C. § 7614; Head Start Act, 42 U.S.C. § 9839(g)(3); Urban Mass
Transportation Act, 49 U.S.C. § 5333(a); Rail Passenger Service Act, 49 U.S.C. § 24312;
Airport and Airway Improvement Act, 49 U.S.C. § 47112(b); Model Secondary School for
the Deaf Act, Pub. L. No. 89-694, § 4, 80 Stat. 694; Delaware River Basin Compact, Pub.
L. No. 87-328, § 15.1, 75 Stat. 714.
10 42 U.S.C. § 5121 et seq.
11 42 U.S.C. § 5196(j)(8). See 42 U.S.C. § 5195a(3) (The term “emergency preparedness”
means “all those activities and measures designed or undertaken to prepare for or minimize
the effects of a hazard upon the civilian population, to deal with the immediate emergency
conditions which would be created by the hazard, and to effectuate emergency repairs to,
or the emergency restoration of, vital utilities and facilities destroyed or damaged by the
hazard.” Measures to be undertaken in preparation for anticipated hazards include the
construction of shelters, shelter areas, and control centers.).
12 See 42 U.S.C. §§ 5172(a)(1) (The President may make contributions (1) to a State or local
government for the repair, restoration, reconstruction, or replacement of a public facility
which is damaged or destroyed by a major disaster and for associated expenses incurred by
such government; and (2) to a person who owns or operates a private nonprofit facility
damaged or destroyed by a major disaster for the repair, restoration, reconstruction, or
replacement of such facility and for associated expenses incurred by such person.);
occupied private residences, utilities, and residential infrastructure damaged by a major
disaster to a safe and sanitary living or functioning condition).
13 S. 2452, 107th Cong. § 194 (2002) (Lieberman substitute).
Effect of Proclamation
Shortly after the issuance of the President’s September 8, 2005 Proclamation,
questions concerning the validity and effect of the Proclamation were raised. Some
argued that the National Emergencies Act (“NEA”) requires the President to declare
a national emergency before he may suspend the prevailing wage requirements of the
Davis-Bacon Act.14 Enacted in 1976, the NEA identifies a procedure for declarations
of national emergency by the President, prescribes accountability and reporting
requirements for the President, and provides for the termination of national
emergencies.15 The NEA was enacted, in part, “to provide for [the] orderly
implementation and termination of future national emergencies.”16 Because the
Proclamation was seemingly issued without regard to the NEA, critics maintained
that it could be invalid.17
Section 201 of the NEA provides for the declaration of national emergency by
the President and discusses the effect of such a declaration on other laws. Section
With respect to Acts of Congress authorizing the exercise, during the period of
a national emergency, of any special or extraordinary power, the President is
authorized to declare such national emergency. Such proclamation shall
immediately be transmitted to the Congress and published in the Federal18
In the Senate report accompanying the NEA, the Senate Committee on Government
Operations indicated that section 201(a) was not intended to grant additional
authority to the President: “The President can only exercise those powers delegated
to him in other statutes . . . The purpose of this statute is to prescribe the procedures
to be followed in the event that the President proclaims a national emergency, as
authorized by some other statute.”19
14 See Rep. Miller: In Rush to Cut Wages, President Forgets to First Declare National
Emergency, US Federal News, Sept. 16, 2005, 2005 WLNR 14735421 (“‘President Bush
was in such a hurry to cut workers’ wages that he did it even before declaring a national
emergency. This may mean that the President’s wage proclamation was done illegally.’”).
15 50 U.S.C. § 1601 et seq. For additional information about the National Emergencies Act,
see CRS Report 98-505, National Emergency Powers, by Harold C. Relyea.
16 S. Rep. No. 94-1168, at 1(1976), reprinted in 1976 U.S.C.C.A.N. 2288.
17 See note 14.
18 50 U.S.C. § 1621(a). See S. Rep. No. 93-549, at 314 (1973) (identifying section 6 of the
Davis-Bacon Act as authorizing the exercise of special or extraordinary power during a
period of a national emergency).
19 S. Rep. No. 94-1168, supra note 16 at 4. The House Committee on the Judiciary, which
also reviewed the National Emergencies Act, reached a similar conclusion. See H.R. Rep.
No. 94-238, at 5 (“This language of section 201(a) is not intended to grant any additional
authority to the President. Rather it indicates the general nature of the circumstances in
which a declaration might be issued. The proclamation would be immediately transmitted
Section 201(b) of the NEA further provides, in relevant part:
Any provisions of law conferring powers and authorities to be exercised during
a national emergency shall be effective and remain in effect (1) only when the
President (in accordance with subsection (a) of this section), specifically declares20
a national emergency, and (2) only in accordance with this chapter.
The Senate Committee on Government Operations maintained that section 201(b)
establishes that the statutes granting powers to the President during a national
emergency shall have effect “only during times the President has declared a national
emergency and then only if he has acted in accordance with the provisions of the
act.”21 The Committee also observed that the stipulation in section 201(b) “has
particular reference to the provisions of section 301 which require that the President
specify the laws he or other officers will utilize.”22
Both the language of section 201(b) and the legislative history of the NEA
appear to support the position that a declaration of national emergency must be issued
in accordance with the NEA to be effective. Section 201(a) of the NEA requires a
declaration to be transmitted immediately to the Congress and published in the
Federal Register. Section 301 requires the President to “specify the provisions of law23
under which he proposes that he, or other officers will act.” Section 301 also states
that such specification may be made either in the declaration of national emergency24
or in subsequent executive orders.
Although the President’s September 8, 2005 Proclamation did not mention the
NEA and was not identified as a “declaration,” it seems possible to have argued that25
the Proclamation did comply with the NEA’s requirements. The Proclamation
stated that “conditions caused by Hurricane Katrina constitute a ‘national emergency’
to the Congress and published in the Federal Register.”).
20 50 U.S.C. § 1621(b).
21 S. Rep. No. 94-1168, supra note 16 at 5.
22 Id. The House Committee on the Judiciary again reached a similar conclusion. See H.R.
Rep. No. 94-238, at 5-6 (“Subsection (b) limits the effectiveness of provisions of law to be
exercised during a national emergency to periods when a President’s declaration of national
emergency is in effect and then only in accordance with the balance of the provisions of the
bill. This latter provision has particular reference to the provisions of section 301 which
requires that the President specify the provisions of law he will utilize or under which other
officers of the Government will act.”).
23 50 U.S.C. § 1631.
25 Compare Proclamation 7924, supra note 1, with Proclamation 7463, 66 Fed. Reg. 48,199
(Sept. 14, 2001) (titled “Declaration of National Emergency by Reason of Certain Terrorist
. . .”26 The Proclamation was transmitted immediately to Congress and published in
the Federal Register.27 Finally, the Proclamation identified 40 U.S.C. § 3147 as the
provision of law under which the President proposed to act.28 Thus, while the
Proclamation did not follow identically the language or structure of other declarations
of national emergency under the NEA, it appeared to satisfy generally the act’s
substantive and procedural requirements.29
If the Proclamation was found to comply with the NEA’s requirements, it seems
likely that the statute’s other provisions would have become applicable. For
example, section 202(b) of the NEA requires that each house of Congress meet to
consider a vote on a joint resolution to terminate the emergency no later than six
months after the emergency is declared, and within each six-month period thereafter
during the course of the emergency.30 In addition, section 202(d) provides for the
termination of a national emergency
on the anniversary of the declaration of that emergency if, within the ninety-day
period prior to each anniversary date, the President does not publish in the
Federal Register and transmit to the Congress a notice stating that such31
emergency is to continue in effect after such anniversary.
Thus, although section 6 of the Davis-Bacon Act does not identify a time period or
expiration date for suspensions brought under that section, the NEA would have
likely prompted the automatic termination of the suspension if the President did not
provide for the extension of the national emergency.
Questions about the termination of the suspension and the relationship between
the Proclamation and the NEA, however, seemed to disappear following the issuance
of a second Proclamation on November 3, 2005.32 This second Proclamation revoked
the September 8, 2005 Proclamation and reimposed the prevailing wage requirements
of the Davis-Bacon Act and the related acts. Although the September 8, 2005
Proclamation did not reference the NEA, the statute was identified in the November
26 Proclamation 7924, supra note 1.
27 See H.R. Doc. 109-55 (2005); 151 Cong. Rec. S9831 (daily ed. Sept. 8, 2005) (Report on
the Suspension of Subchapter IV of Chapter 31 of Title 40, United States Code, Within a
Limited Geographic Area in Response to the National Emergency Caused by Hurricane
Katrina); 70 Fed. Reg. 54,227 (Sept. 8, 2005).
28 See Proclamation No. 7924, supra note 1.
29 See, e.g., Proclamation No. 7463, supra note 25 (“. . . I hereby declare that the national
emergency has existed since September 11, 2001, and, pursuant to the National Emergencies
Act . . . I intend to utilize the following statutes: sections 123, 123a, 527, 2201(c), 12006,
and 12302 of title 10, United States Code, and sections 331, 359, and 367 of title 14, United
States Code.”). The National Emergencies Act does not appear to require a proclamation
to specifically reference the NEA in its text.
30 50 U.S.C. § 1622(b).
31 50 U.S.C. § 1622(d).
32 Proclamation 7959, 70 Fed. Reg. 67,899 (Nov. 3, 2005), available at
[ ht t p: / / www.whi t e house.gov/ news/ r el eases/ 2005/ 11/ 20051103-9.ht ml ] .
3, 2005 Proclamation as a source for the President’s authority.33 By revoking the
suspension so soon after the September 8, 2005 Proclamation, the second
proclamation left unresolved the question of whether the September 8, 2005
Proclamation not only suspended the Davis-Bacon Act, but also served as a
declaration of national emergency under the NEA.
33 Id (“NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of
America, acting under the authority vested in me by the Constitution and the laws of the
United States, including section 202 of the National Emergencies Act, 50 U.S.C. 1622, do
by this Proclamation revoke . . . Proclamation 7924 as to all contracts for which bids are
opened or negotiations concluded on or after November 8, 2005.”).