The Davis-Bacon Act: Institutional Evolution and Public Policy

The Davis-Bacon Act:
Institutional Evolution and Public Policy
Updated November 30, 2007
William G. Whittaker
Specialist in Labor Economics
Domestic Social Policy Division
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The Davis-Bacon Act:
Institutional Evolution and Public Policy
In 1931, at the urging of the Hoover Administration, Congress adopted the
Davis-Bacon Act. The measure set certain minimum labor standards for workers
employed in federal contract construction: notably, that contractors must pay their
employees not less than the locally prevailing wage. The threshold for coverage is
currently $2,000 and up. Construction crafts are divided into four components:
commercial buildings, highways, residential, and heavy construction. Locality, in
this case, is normally the equivalent of a county, though other options are possible.
In addition, the Copeland “anti-kickback” Act of 1934 sets reporting requirements
intended to aid in Davis-Bacon enforcement and compliance. Through the years, the
Davis-Bacon requirements have been applied to dozens of program statutes that
involve federal and federally assisted construction.
Davis-Bacon has been amended over the years to expand its coverage and to
strengthen enforcement. It has generally enjoyed strong bipartisan support throughout
its history; but, the act has also sparked continuing controversy and opposition,
especially from non-union contractors. Issues of policy concerning the act, raised
initially in the 1920s and 1930s, continue to be debated into the 21st century.
Seventy-five years after its enactment, questions remain about its economic impact,
its scope and pattern of coverage, and its administration. Since the early 1950s, the
act has been variously the focus of rulemaking, litigation, and legislative interest and,
through the past quarter century, of all three.
In 1934 and in 1971, the act was generally (but temporarily) suspended by
Presidents Roosevelt and Nixon. From October 1992 until March 1993, it was
suspended by President George H.W. Bush, but only for locations affected by
Hurricanes Andrew and Iniki. From September into November 2005, it was
suspended by President George W. Bush for areas affected by Hurricane Katrina.
Into the early 1990s, bills were introduced that would have repealed the Davis-
Bacon and Copeland Acts outright, had they been adopted, eliminating the prevailing
wage and reporting requirements from program statutes into which they have been
incorporated. In the mid-1990s, a shift in political control in Congress seemed to
forecast victory for those favoring repeal. But ultimately, the prevailing wage issue
proved to be bipartisan and the statutes (Davis-Bacon and Copeland) remained
unchanged. Prevailing wage/Davis-Bacon provisions have continued to be included
in federal program statutes where construction has been a program component.
With the advent of the 21st century, the Davis-Bacon debate has continued
sporadically, but its focus, increasingly, has been upon the prevailing wage standards
of program legislation. Given the experience of the past seven decades, it seems
likely that Davis-Bacon will remain an issue of public policy for the immediate
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Controversy Concerning the Davis-Bacon Act...........................2
On the One Hand..............................................2
On the Other Hand.............................................2
The Davis-Bacon Literature......................................3
Origins of the Davis-Bacon Act.......................................3
Preliminary Initiatives, 1927-1930.................................3
An Enactment Emerges, 1931....................................4
Modifying the Davis-Bacon Act, 1931-1961.............................6
The Executive Order of 1932.....................................7
President Hoover Acts Administratively........................7
Reaction to the Order.......................................8
Congressional Action, 1934-1935.................................9
The Copeland “Anti-Kickback” Act (1934).....................9
The Davis-Bacon Amendments (1935)........................10
A Period of Relative Quiet, 1935-1952............................11
Changing Realities, New Perspectives.........................11
World War II and the Truman Era............................12
The Eisenhower Era: A Pivotal Period?...........................13
Some Issues of Policy.....................................13
A Changing Perspective on the Davis-Bacon Act?...............14
Davis-Bacon During the 1960s......................................16
Industry Classification and Labor Standards........................17
The Roosevelt Subcommittee...................................17
Creation of the Wage Appeals Board.........................18
The Fringe Benefits Amendment (1964).......................19
Suspension of the Davis-Bacon Act, 1971..............................20
The Roosevelt Precedent (1934).................................20
The Nixon Suspension (1971)...................................21
Lifting the Davis-Bacon Requirements........................21
Some Questions and Reactions..............................22
Restoration of the Act.....................................23
The Carter Era: New Conflicts Concerning the Davis-Bacon Act...........23
GAO Enters the Fray..........................................23
Oversight Testimony (1962)................................24
GAO Urges Repeal of Davis-Bacon (1979).....................24
Inter-Agency Relations and Contract Labor Standards................26
Bureaucratic Controversy...................................26
A Task Force Formed (1978-1980)...........................28
“Reforming” the Davis-Bacon Act Administratively.....................29
The Initial Reagan Administration Proposals.......................29
The New Regulations Challenged in Court.........................30
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Suspension of the Davis-Bacon Act, 1992-1993.........................32
The Bush “Partial” Davis-Bacon Suspension.......................32
Reaction and Reinstatement.....................................33
Some Questions Remain.......................................34
Davis-Bacon in the 1990s: The Hatfield/Weldon Proposals................35
A Growing Momentum for Repeal of Davis-Bacon..................35
The Hatfield Proposal.........................................37
Companion Legislation Offered in the House.......................37
Suspension of the Davis-Bacon Act, 2005..............................38
Reaction from President Bush...................................38
Reaction to the Promulgation....................................40
Legislation Introduced.........................................40
Davis-Bacon Reinstated........................................41
Issues Remaining for the New Century................................42
Concluding Comment.............................................43
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The Davis-Bacon Act:
Institutional Evolution and Public Policy
The Davis-Bacon Act was adopted in early 1931. It was amended during the
middle 1930s and, then, quietly became a part of federal contract practice. During the
middle 1950s, however, it gained more visibility as the Davis-Bacon “prevailing
wage principle” was added to various federal program statutes. For more than 4
decades now, and continuing into the 21st century, Davis-Bacon has been almost
constantly a focus of public policy concern: as legislation, through administrative
rulemaking, and in litigation before the courts.1
As amended, the Davis-Bacon Act of 1931 requires, among other things, that
construction contracts entered into by the federal government specify minimum
wages to be paid to the various classes of laborers employed under those contracts.2
Minimum wages are defined as those determined by the Secretary of Labor (a) to be
prevailing (b) in the locality of the project (c) for similar crafts and skills (d) on
comparable construction work. The concept of wage was expanded in 1964 to
include a fringe benefit component. The act has a coverage threshold of $2,000.
In addition to direct federal construction contracts, the Davis-Bacon prevailing
wage “principle” has been written into more than 50 federal program statutes. The
act is supplemented by the 1934 Copeland “anti-kickback” Act (which requires
weekly reporting of wages actually paid and an affirmation from employers that any
deductions from wages due to employees have been proper) and by federal overtime
pay and health and safety standards statutes. Further, some states have enacted “little
Davis-Bacon” acts within their respective jurisdictions.
The rhetoric, for and against the act, has changed little through the years. Does
the act protect workers, help stabilize the construction industry, and serve the federal
contracting community? Or, is it anti-competitive, preventing flexible workforce
utilization? Has it been administered effectively and, if not, can it be administered
in an equitable fashion? Is there sufficient objective information concerning the act
to allow for fair assessment of the statute and its impact?
This report examines policy issues the act has sparked through the years and
which remain a part of the Davis-Bacon debate into the 21st century. These include
such questions as: wage rate determination procedures, reporting requirements under
the Copeland Act, an appropriate threshold for activation of the statute, interagency
1 See 40 U.S.C. 276a-276a-5. See, also, 40 U.S.C. 3141-3148, as re-codified.
2 Alongside the Davis-Bacon Act are two other statutes governing labor standards in federal
contracts for goods and services respectively: the Walsh-Healey Act (1936), 41 U.S.C. 35-

45; and the McNamara-O’Hara Act (1965), 41 U.S.C. 351-358.

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relationships with respect to Davis-Bacon enforcement and compliance activity,
administrative or judicial appeals procedures, the use of “helpers” and other low-
skilled workers on covered projects, and the right of a President to suspend the
statute as well as the conditions under which such a suspension may occur. That the
fundamental premise of the act remains in contention after 75 years may be, itself,
part of the public policy debate.
Controversy Concerning the Davis-Bacon Act
Historically, the act has enjoyed strong bipartisan support; but, at the same time,
especially since the middle 1950s, it has provoked militant criticism. Federal
agencies have disagreed, publicly, concerning the usefulness and administration of
the act. It has been subjected to judicial review and interpretation, each new
application becoming, in turn, a matter for further examination.
Although the Department of Labor (DOL) has made certain changes in the act’s
administration, the statute itself has remained largely unchanged since 1935.
Through the years, however, Congress has extended the act’s provisions to cover an
ever wider segment of federal and federally assisted construction; and, at least during
the past several decades, such extensions of coverage have provided an opportunity
for renewed debate concerning the act and its impact.
On the One Hand
Critics of the act argue, even were the statute justified in 1931, that it has now
been rendered obsolete through market changes and enactment of other federal labor
standards laws — notably, the Fair Labor Standards Act of 1938. Further, they argue
that the act is inflationary, adding to the cost of public construction and, thereby,
potentially reducing the volume of construction and the number of federal
construction jobs. Finally, they suggest that it is anti-competitive, discriminates
against smaller firms, and is difficult to administer. Repeal or significant
modification of the act, they note, would reduce the paperwork burden of doing
business with the federal government and would allow contractors more flexibility
in manpower utilization.
On the Other Hand
The act’s defenders hold that Davis-Bacon is as important now as it was in the
1930s. It prevents, they assert, competition from “fly-by-night” firms that undercut
local wages and working conditions and compete, unfairly, with local contractors for
federal work. It helps stabilize the industry, an advantage, they suggest, to workers
and to employers. In addition, Davis-Bacon may assure the consuming agency of
better craftsmanship (if, when firms are required to pay not less than the locally
prevailing wage, they tend to employ more highly skilled workers); and, supporters
of the act add, it may reduce both the initial cost of federal construction through
greater efficiency and decrease the need for repair and/or rehabilitation. At the same
time, they point out, it deters contractors from fragmenting work and utilizing low-
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skill/low-wage “pick-up” crews and “helpers” and promotes skill transfer through
formal apprenticeship programs.
The Davis-Bacon Literature
The Davis-Bacon literature is extensive and diverse. Generally, it falls into
three categories: public materials (i.e., legislative hearings, agency reports and
analyses), journalistic pieces, and academic studies. Of the latter, some are products
that have been commissioned by interest groups (though they may be scholarly,
nonetheless); others are putatively independent academic work. In some cases, there
has been a merger of scholarship with journalism.
Through the years since the prevailing wage legislation was first considered at
the federal level, there have been numerous congressional hearings that have
reviewed the statute. However, these seem, often, to have focused broadly upon
policy concerns rather than upon specific economic impact and its assessment.
As the Davis-Bacon debate has evolved, arguments have progressed through
several levels of affirmation and rebuttal, most of which, pro and con, are subject to
further oft-repeated counter arguments. At large, there appear to be significant gaps
in our knowledge of the act, its administration and impact. Few studies of the statute,
whether public or private, have escaped criticism on the grounds of flawed
methodology or inadequate sample size.
Origins of the Davis-Bacon Act
Prevailing wage protection, under public contracts, seems to have commenced
at the state level and, later, to have been adopted by the federal government.3
Preliminary Initiatives, 1927-1930
Congressional interest in federal prevailing wage legislation predates both the
“New Deal” and the economic collapse of 1929. Indeed, it emerged during a time
of relative prosperity in the construction industry. The building industry, observed
William Tracy of the Building Trades Department, AFL, was “enjoying the greatest
prosperity in its history — with wages and hours of labor and improved working
conditions better than ever before.”4 But, it appears also to have been a period of
turbulence and intense competition within the contracting community.5
3 David B. Johnson, “Prevailing Wage Legislation in the States,” Monthly Labor Review,
August 1,1961. pp. 839-845.
4 William J. Tracy, “The Building Trades,” American Federationist, January 1927, p. 39.
The American Federation of Labor (AFL) joined with the Congress of Industrial
Organizations (CIO) in 1955 to form the AFL-CIO. The CIO was organized only in the
middle 1930s.
5 See, for example Lloyd Smith, “To Eliminate Irresponsible Bidders,” The Constructor,
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During hearings before the House Committee on Labor in February 1927,
Representative Robert L. Bacon (R-N.Y.) echoed Tracy’s views. In New York, he
noted, “wages are fair and there has been no difficulty in the building trades between
employee and employer ... for some time.” Bacon wanted to keep it that way: in
1927, he introduced legislation to require that locally prevailing wage standards be
met in federal construction work.
Problems, however, had emerged with respect to construction of a federal
hospital in Bacon’s New York district. Local contractors, he explained, had
submitted bids on the project that reflected local standards. But the contract was
awarded to an Alabama firm. The latter, Bacon noted, “... brought some thousand
non-union laborers from Alabama into Long Island, N.Y.; ... They were herded onto
this job, they were housed in shacks, they were paid a very low wage and the work
proceeded.” In Bacon’s view, the least government could do, when contracting, was
“to comply with the local standards of wages and labor prevailing in the locality
where the building construction is to take place.” His measure did not seek to inflate
wages artificially but, rather, to assure that government respected the existing local
standard.6 The bill was not adopted.
Similar legislation was introduced in 1928 and, this time, Bacon won strong
support from the U.S. Department of Labor (DOL). In a note to Labor Secretary
James J. Davis, Commissioner of Labor Statistics Ethelbert Stewart pointed out:
“The essence of the thing as I see it is: Is the Government willing for the sake of the
lowest bidder to break down all labor standards and have its work done by the
cheapest labor that can be secured and shipped from State to State?”7 Steward
expressed his full support for the Bacon bill, as did Davis. Indeed, to this point, the
hearings had brought forth a body of testimony generally supportive of the prevailing
wage concept, if not always of the specific provisions of the several differing
proposals. But, once again, the proposal died when Congress adjourned.
An Enactment Emerges, 1931
Late in 1930, after nearly a decade as Secretary of Labor (through the
Administrations of Warren Harding, Calvin Coolidge and Herbert Hoover), Davis
moved on to become a United States Senator. Among the first acts of the
5 (...continued)
January 1925, pp. 23, 64; Frank N. Watson, “Diagnosing the Ills of Construction,” The
Constructor, November 1927, pp. 27-28, 47, 49, 51, 53, and 55; “When Low Bids Are Too
Expensive,” The Constructor, February 1930, pp. 40-41 and 58; and “Constructive Policies
Are Adopted by A.G.C.,” The Constructor, February 1931, pp. 24-25, and 53. The
Constructor is published by the Associated General Contractors.
6 U.S. Congress, House Committee on Labor, Hours of Labor and Wages on Public Works,
hearings on H.R. 17069, 69th Cong., 2nd sess., February 18, 1927 (Washington: GPO, 1927,)
p. 2.
7 U.S. Congress, House Committee on Labor, Preferences in the Employment of Labor on
Federal Construction Works, hearings on H.R. 11141, 70th Cong., 1st sess., March 19, 1928,
pp. 4-5.
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Pennsylvania Republican was introduction of prevailing wage legislation.
Representative Bacon offered a companion bill.
The language of the Davis-Bacon proposals had been worked out by a
committee “representing all of the departments” of the Hoover Administration and
“unanimously agreed on.” William N. Doak, Davis’s successor as Labor Secretary
in the Hoover cabinet, testifying in support of the Davis-Bacon legislation, noted that
current contracting practices were “not only disturbing to labor but disturbing to the
business community as well.”8 When the legislation was taken up in the Senate,
Senator Robert LaFollette (Progressive Republican-Wisc.), chairman of the
Committee on Manufactures, urged that the measure “be speedily enacted.”9
The report, submitted for the Committee by Senator Davis, stated that the
“measure does not require the Government to establish any new wage scales in any
portion of the country.” Instead, the report pointed out, “[i]t merely gives the
Government the power to require its contractors to pay their employees the prevailing
wage scales in the vicinity of the building projects. This is only fair and just,” it
noted, “to the employees, the contractors, and the Government alike.”10 A similar
report was filed by Representative Richard J. Welch (R-Calif.) for the House
Committee on Labor.11
Neither report recorded dissent; but, when the measure was considered in the
House, reservations were voiced. Representative Thomas L. Blanton (D-Texas),
noted that the measure was “the most ridiculous proposition I have ever seen brought
before a legislative body.” Observing that the bill imposed a wage floor (that not less
than the locally prevailing wage be paid), Blanton objected that workers and
contractors ought to be free to bargain for as high or low a wage as they might
choose. “You are taking away from American citizens, contractors, and laborers
alike the sacred, inherent right of contract — the right to make their own contracts
for themselves,” the Texan observed. “We are thus proposing by this pernicious bill
to interfere with a sacred, inalienable right that has given initiative and independence
to men for ages past.”12
In addition, Representative Blanton placed in the Record a letter from
Comptroller General J. R. McCarl who raised questions of a different sort. Since the
specific determination of prevailing wage rates was to be made after bids had been
submitted, McCarl argued that none of the parties to the agreement “could know at
8 U.S. Congress, Senate Committee on Manufactures, Wages of Laborers and Mechanics on
Public Buildings, hearings on S. 5904, 71st Cong., 3rd sess., February 3, 1931, pp. 2-3.
9 Congressional Record, February 4, 1931, p. 3918.
10 U.S. Congress, Senate, Regulation of Wages Paid to Employees by Contractors Awarded
Government Building Contracts, report to accompany S. 5904, 71st Cong., 3rd sess., S.Rept.

1445 (Washington: GPO, 1931), pp. 1-2.

11 U.S. Congress, House Committee on Labor, Regulation of Wages Paid to Employees by
Contractors Awarded Government Building Contracts, report to accompany H.R. 16619,strd

71 Cong., 3 sess., H.Rept. 2453 (Washington: GPO, 1931), pp. 1-2.

12 Congressional Record, February 28, 1931, pp. 6508-6509.
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the time of contracting the prevailing rate of wages which the contractors must pay
during the progress of the work.”13 A. P. Greensfelder, President of the Associated
General Contractors of America, seemed to concur in McCarl’s judgment. He
emphasized the uncertainty that would result, though agreeing, in principle, that
contractors should pay not less than the locally prevailing wage rate.14
At the same time, Representative Anning Prall (D-N.Y.) suggested that the
enforcement provisions of the legislation were insufficiently strong. But, he
supported the bill and observed: “If we find unscrupulous contractors attempting to
beat the law, we can quickly amend it by putting teeth in it.”15
In the end, the act was adopted without a roll call and, on March 3, 1931, signed
into law by President Hoover.16
Modifying the Davis-Bacon Act, 1931-1961
Dissatisfaction with the act was soon rife, both with labor and contractors. The
initial enactment had been a brief and relatively simple statement of policy. Armand
Thieblot, who has written extensively about the act, suggests that it “lacked effective
mechanisms for either policing or enforcing” its requirements, and that “no
provisions were made for informing laborers of the protections afforded them” under
the new statute.17 Trade unionists were concerned that the scope of the act might
leave too many workers unprotected. The threshold had initially been set at $5,000,
sparking labor’s fear that contracts might be fragmented in order to escape the act’s
requirements — a matter of special concern for the painting and decorating crafts.
The AFL’s Executive Council noted that the Davis-Bacon Act “will prove a great
benefit so far as it goes,” adding that “[a]mendments to further benefit the building
trades will be submitted at future sessions of Congress.”18
Among industry objections, perhaps the most critical was the fact that wage rate
determinations were made after bids were submitted. Thieblot, joining in the early
reservations of Comptroller General McCarl, noted above, explains:
“Postdetermination of wages meant that a contractor could be forced to pay wages
which, upon determination by the secretary of labor, were higher than the rate on
13 Congressional Record, February 28, 1931, p. 6505.
14 Ibid., p. 6508. Rep. Blanton placed Mr. Greensfelder’s comments in the Record.
15 Ibid., p. 6520.
16 Congressional Record, February 4, 1931, pp. 3918-3919; February 28, 1931, pp. 6504-

6521; and March 3, 1931, p. 6906.

17 Armand J. Thieblot, Jr., The Davis-Bacon Act (Philadelphia: The Wharton School,
University of Pennsylvania, 1975), p. 11. (Hereafter cited as Thieblot, The Davis Bacon
18 Proceedings of the Annual Convention of the American Federation of Labor, Vancouver,
British Columbia, October 5, 1931, p. 104. Emphasis added.
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which his bid was based.”19 In effect, contractors (and, perhaps, especially those
from outside of the area of work) were bidding blindly: agreeing to pay whatever
wage rate the Secretary might determine to be prevailing in the locality. And, in the
beginning, it may not have been entirely clear what was meant by “prevailing” and
certain other terms used in the act.
The Executive Order of 1932
Changes in the act were quickly proposed. In January 1932, the House
Committee on Labor commenced oversight hearings. Almost immediately, however,
President Hoover responded with an executive order tightening the act’s
administration. 20
President Hoover Acts Administratively. Behind-the-scenes negotiations
concerning amendment of the act appear to have been intense. At first, organized
labor seems to have urged Members of Congress to add a strengthened penalty
structure to the statute. Oversight hearings commenced in the House early in January
1932. But, no sooner had they gotten underway than President Hoover issued
Executive Order No. 5778, dated January 19, 1932, but made public two days later.
Representative William Connery (D-Mass.), in an analysis not immediately
challenged, recalled that “representatives of the building trades, after a conference
with Secretary Doak, made a deal with the Secretary whereby, if the President ...
would issue an executive order on the Davis-Bacon bill they would be against any21
further legislation on the matter by the Committee on Labor.”
President Hoover’s Executive Order provided that all Davis-Bacon contracts
contain the following stipulations:
!That wages be paid in full not less than once a week, “in lawful
money of the United States ... and without subsequent deduction or
rebate on any account.”
!That “every person, while performing work of a laborer or mechanic
on the public work covered by this contract, is to be regarded as
employed as a laborer or mechanic by the contractor or
subcontractor, regardless of any contractual relationship alleged to
exist between the contractor or subcontractor and such laborer or
m echani c.”
!That payroll records “are to be open to inspection by the contracting
officer at such times as the latter may elect, provided that such
inspection shall not interfere with the proper and orderly prosecution
of the work,” and that the rates payable under the contract “shall be
posted by the contractor in a prominent and easily accessible place
at the site of the work” where workers can view them.
19 Thieblot, The Davis Bacon Act, p. 11.
20 Proclamations and Executive Orders: Herbert Hoover, March 4, 1929 to March 4, 1933
(Washington: GPO, 1974), vol. II, pp. 1066-1067.
21 Congressional Record, June 8, 1932, pp. 12380-12381.
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!Should it be found that a contractor or subcontractor has paid his
workers less than the stipulated prevailing rate of wages, the
government may terminate the contract and “may take over the work
and prosecute the same to completion by contract or otherwise, and
that the contractor and his sureties shall be liable to the Government
for any excess cost occasioned the Government thereby.”22
Appearing in the midst of congressional oversight hearings on the act, Executive
Order No. 5778 seems to have caused the several parties to pause and regroup. That
the Order had been issued unilaterally by the President and could be withdrawn or
altered at subsequent presidential discretion have caused some uneasiness and,
perhaps, contributed to a movement for codification by statute.
Reaction to the Order. Feelings were mixed with respect to the Executive
Order. Labor, which seems to have feared that review of the statute would have
endangered “whatever benefits we have secured through the present legislation,”
tended to view the Hoover initiative with approval. Representative Bacon noted that
the Order “simply carries out in the Government contract form what Congress
intended by the law.” Secretary Doak observed that the act had “worked out much
more satisfactorily than many of us believed possible when the legislation was
enacted,” predicting that the Order would “prove most helpful in further stabilizing
the wage rates and conditions in the construction of Federal buildings,” and adding23
that there was no “necessity of further legislation ... at the present time.”
Industry was less pleased, arguing that wage rates should be made known prior
to the submission of bids. Legislation to achieve industry’s objectives, introduced
by Senator Jesse Metcalf (R-R.I.), provided for predetermination of wage rates,
allowed for reopening of contracts which covered extended periods, established an
“anti-kickback” provision, and set forth procedures for enforcement and the
imposition of penalties for violators. Following hearings,24 the measure was adopted25
by the Senate with minimum discussion and on a voice vote.
By the time the Metcalf bill was called up in the House (June 1932), opinion had
been solidly formed. Labor opposed it; industry urged its passage. It was
significantly modified on the floor, in part to make it more nearly acceptable to labor,
but it remained controversial.26
22 U.S. President Hoover, Executive Orders, 5735-6070, October 1931-March 1933.
Collected set, bound by the Library of Congress.
23 U.S. Congress, House Committee on Labor, Regulations of Wages Paid to Employees by
Contractors Awarded Government Building Contracts, hearings, 72d Cong., 1st sess.,
January 13-15, 19-22, 27, 1932 (Washington: GPO, 1932), pp. 155, 164, and 179.
24 U.S. Congress, Senate Committee on Education and Labor, Rate of Wages for Laborers
and Mechanics Employed by Contractors and Subcontractors on Public Buildings, hearingsst
on S. 3847, 72d Cong., 1 sess., March 17, 1932.
25 Congressional Record, April 18, 1932, pp. 8364-8365.
26 U.S. Congress, Committee on Labor, Regulation of Wages Paid to Employees by
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During hearings and floor debates, issues were raised that would continue to be
a focus of controversy through the next six decades. For example: What constitutes
a prevailing wage? How is a prevailing wage to be determined and when? Should
there be regional variations in standards? Would wages, under Davis-Bacon, be
comparable for private and public construction? What constitutes an appropriate
locality for purposes of wage determinations? How should problems of abuse under
the act (notably, kickbacks) be dealt with? Should the protections of the act extend
to production of prefabricated materials to be used in construction? Was the act only
of advantage to employed construction workers, a class that might not be in need of
federal protection? Does the act restrict employment opportunities in construction?
These questions were not to be resolved in the near term.
As amended, the measure passed the House and, after conference, was approved
by the Senate.27 On July 1, 1932, however, President Hoover vetoed the proposed
amendments to the Davis-Bacon Act. No further action was taken by the 72nd
Congress. While the President did not explain his views, he attached to his veto
message a memorandum from Secretary Doak which branded the legislation as
“obscure and complex” and noted that it “would be impracticable of administration”
and “would stretch a new bureaucracy across the country.”28
Congressional Action, 1934-1935
Hearings continued on federal construction wage policy through the next several
years. These provided the basis for adoption of the Copeland “anti-kickback” Act
(1934) and for major amendments to the Davis-Bacon Act in 1935.
The Copeland “Anti-Kickback” Act (1934). While Davis-Bacon required
payment of not less than the locally prevailing wage on federal contract construction,
it remained to be enforced. Some employers, paying the requisite wages, it was
alleged, would then institute deductions and/or “kickbacks,” thus recovering portions
of those wages.
Senator Royal Copeland (D-N.Y.), whose Subcommittee on Crime had been
exploring this abuse, reported that perhaps as much as “25 percent of the money
which is supposed to be paid for labor under the prevailing rates of wage is
unlawfully, unjustly, and indecently returned to contractors, subcontractors, or
officials on the job.” Senator Davis of Pennsylvania, drawing upon his DOL29
experience, concurred.
26 (...continued)
Contractors Awarded Government Building Contracts hearings on S. 3847 and H.R. 11865,st

72d Cong., 1 sess., April 28, May 3, 9, 11, 12, 1932 (Washington: GPO, 1932).

27 Congressional Record, June 8, 1932, pp. 12363-12390; and June 20, 1932, p. 13471.
28 Public Papers of the Presidents of the United States: Herbert Hoover, 1932-1933
(Washington: GPO, 1977), p. 286.
29 U.S. Congress, Senate Subcommittee of the Committee on Education and Labor,
Investigation of the Relationship Existing Between Certain Contractors and Their
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A legislative solution was promptly found. Supported by the Roosevelt
Administration, the Copeland bill was called up in the Senate (April 26, 1934) and,
with a brief statement by the Senator, passed.30 The House similarly acted without
debate. On June 13, 1934, President Roosevelt signed the measure.31
The Copeland “anti-kickback” Act, which supplements Davis-Bacon, orders a
fine of not more that $5,000 or imprisonment of not more than five years, or both, for
anyone who induces any person engaged in federal or federally financed construction
“to give up any part of the compensation to which he is entitled under his contract of
employment, by force, intimidation, threat of procuring dismissal from such
employment, or by any other manner whatsoever.” The act authorized the
administering agencies to “make reasonable regulations” for its enforcement, but
specifically required that “each contractor and subcontractor shall furnish weekly a
sworn affidavit with respect to the wages paid each employee during the preceding
week.”32 (See discussion later in this report of proposals by the Reagan
Administration to modify the reporting requirements of the Copeland Act.)
The Davis-Bacon Amendments (1935). During a general review of
federal contracting policy, Senator David Walsh (D-Mass.) had conducted oversight
of the Davis-Bacon Act.33 He found that the statute was “inadequate to cope with
many of the practices to which contractors have resorted,” a finding concurred in by
the various departments involved with the Davis-Bacon Act.34
By the spring of 1935, Senator Walsh had ready significant amendments to the
act. In addition to anti-kickback proposals which had been dealt with separately,
Walsh now proposed the following. First. The dollar volume threshold for coverage
under the act should be reduced from $5,000, as in the original law, to $2,000.
Second. Coverage should be extended to all federal contract construction of
whatever character to which the United States and the District of Columbia may be
a party (“construction, alteration, and/or repair, including painting and decorating,35
of public buildings or public works”). (Emphasis added.) Third. There may be
withheld from the contractor by the contracting agency funds sufficient to pay the
appropriate wages to any workers underpaid by the contractor or by one of the
29 (...continued)
Employees in the United States, hearings on S.Res. 228, 73d Cong., 2nd sess., Part 1, May

4, 7, and June 21-23, 1934 (Washington: GPO, 1934), p. 3.

30 Congressional Record, April 26, 1934, p. 7401.
31 Congressional Record, June 7, 1934, p. 10759; and June 15, 1934, p. 11624.
32 Congressional Record, June 7, 1934, p. 10759.
33 U.S. Congress, Senate Committee on Education and Labor, Relationship Between
Employees and Contractors on Public Works, report to accompany S.Res. 222, 35th Cong.,st

1 sess., S.Rept. 332, Part 2 (Washington: GPO, 1935), 10 p.

34 Congressional Record, July 30, 1935, p. 12073.
35 In administering the act of 1931, there had been some dispute as to the inclusion of
painting and decorating within the purposes of Davis-Bacon coverage. The Walsh
amendments made clear that such work was covered.
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subcontractors. Fourth. The Comptroller General would be directed to prepare a list
of contractors who have “disregarded their obligations to employees and
subcontractors.” Listed violators would be barred from federal contracts for a period
of three years. Fifth. Laborers would be provided a “right of action and/or of
intervention” in court against a contractor “and in such proceedings it shall be no
defense that such laborers and mechanics accepted or agreed to accept less than the
required rate of wages or voluntarily made refunds.” Sixth. Davis-Bacon contracts
were to state “the minimum wages to be paid various classes of laborers and
mechanics.” Thus, there would be a predetermination of the Davis-Bacon wage rate:
i.e., prior to the submission of bids by a contractor.
Although certain of the provisions might have seemed controversial, the Walsh
amendments were agreed to in the Senate without discussion.36 In the House, they
were reported favorably without change. The Committee on Labor noted that the bill
“is merely a logical development of a policy consistently expressed by Congress for
the past four years with respect to minimum wages on public construction.”37 In the
House, the bill was called up and, again, passed without discussion.38 A week later,
the measure was signed by the President.39
A Period of Relative Quiet, 1935-1952
For 2 decades after 1935, the Davis-Bacon Act seems to have become, quietly,
a standard part of federal contract policy. The history of the act during this period,
however, remains largely to be explored.
Changing Realities, New Perspectives. Underlying the Davis-Bacon Act
was the concept that the United States, as a consumer, has the right to require certain
standards, by contract, when doing business. If a contractor chose to engage in
federal construction work, then he had to abide by the stated specifications —
including labor standards. In 1936, this principle was extended to the contract
purchase of goods with enactment of the Walsh-Healey Public Contracts Act. (The
principle was further extended, in 1965, with adoption of the McNamara-O’Hara
Service Contract Act, the final segment of federal contract labor standards law.)
In 1938, Congress established a general minimum wage and overtime pay
structure for the private sector with adoption of the Fair Labor Standards Act
(FLSA).40 Enactment of this broad wage/hour legislation may have lessened interest
in the Davis-Bacon and Walsh-Healey Acts. Indeed, some, later, have suggested that
36 Congressional Record, July 30, 1935, pp. 12073-12074.
37 U.S. Congress, House Committee on Labor, Amend the Act Approved March 3, 1931,
Relating to Rate of Wages for Laborers and Mechanics Employed on Public Buildings,
report to accompany S. 3303, August 9, 1935 (Washington: GPO, 1935), p. 1.
38 Congressional Record, August 23, 1935, p. 14384.
39 Congressional Record, August 30, 1935, p. 14753.
40 See Elizabeth Brandeis, Organized Labor and Protective Labor Legislation, in Milton
Derber and Edwin Young (eds.), Labor and the New Deal (Madison: The University of
Wisconsin Press, 1961), pp. 195-237.
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the Davis-Bacon Act was no longer needed at all in view of the general labor
standards protections guaranteed by the FLSA.41
In 1940, the protections of the Davis-Bacon Act were extended to the territories
of Hawaii and Alaska. In 1941, its provisions were made to apply to construction
contracts arranged on a cost-plus/negotiated basis.42
World War II and the Truman Era. With the outbreak of World War II,
federal contracting entered a new era. In the early 1940s, “government procurement
agencies and the international unions” entered into a series of agreements that
“provided for stabilization of wages and conditions at a time when we were at the
critical tooling up stage of the war effort. The machinery established by those
agreements,” President Harry Truman later recalled, “... served us well during the
war” and he pointed with pride to “[t]he splendid record of cooperation with the
Davis-Bacon Division of the Department of Labor.” But, by 1947, most war-time
controls were gone.43
Establishing Administrative Order. Throughout the evolution of the
Davis-Bacon Act, there has been a lingering issue of where ultimate responsibility
for its administration resided. Did authority rest with DOL, with the contracting
agencies or, perhaps, with the General Accounting Office (GAO)? As part of a
program of post-New Deal/post-World War II administrative reforms, President
Truman sought to establish enhanced order, cooperation and efficiency.44
In 1947, Mr. Truman noted that administration of the Davis-Bacon and
Copeland Acts had been divided between DOL and the contracting agencies. “As a
result,” he observed, “enforcement has been very uneven and workers have not had
the protection to which they were entitled.” Therefore, he developed Reorganization
Plan No. 2, which consolidated certain labor standards activities under the Secretary
of Labor. The Reorganization Plan authorized the Secretary of Labor “to coordinate
the administration of the acts for the regulation of wages and hours on Federal public
works by establishing such standards, regulations, and procedures” as will make
enforcement more effective.45
41 U.S. General Accounting Office, The Davis-Bacon Act Should Be Repealed, HDR-79-18,
April 27, 1979, pp. 19-34. Not infrequently (though certainly not always), critics of the
Davis-Bacon and Walsh-Healey Acts have also been critical of the FLSA and have sought
to diminish its requirements.
42 Thieblot, The Davis-Bacon Act, p. 15.
43 Letter to Leaders of Labor and Management in the Building and Construction Industry.
Public Papers of the Presidents of the United States: Harry Truman, January 1 to December

31, 1947 (Washington: GPO, 1963), pp. 117-118.

44 Despite President Truman’s administrative reorganization, inter-agency tension with
respect to Davis-Bacon administration would continue through the end of the century.
45 Message to the Congress Transmitting Reorganization Plan 2 of 1947, May 1, 1947.
Public Papers of the Presidents of the United States, Harry Truman, January 1 to December

31, 1947 (Washington: GPO, 1963), pp. 227-229.

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Three years later (March 1950), President Truman issued Reorganization Plan
No. 14 in which he took note of the confusion caused by interagency involvement in
enforcement of the “several laws regulating wages and hours of workers employed
on Federal contracts for public works or construction.” He pointed specifically to the
Davis-Bacon and Copeland Acts, together with certain federal overtime pay laws,
and to the labor standards provisions that had been added to program statutes
involving construction “financed in whole or in part by loans or grants from the
Federal Government or by mortgages guaranteed by the Federal Government.” Mr.
Truman noted that “[t]he methods adopted by the various agencies for the
enforcement of labor standards vary widely in character and effectiveness. As a
result, uniformity of enforcement is lacking and the degree of protection afforded
workers varies from agency to agency.” To give order to this patchwork, the
President authorized the Secretary of Labor “to coordinate the administration of
legislation relating to wages and hours on Federally financed or assisted projects.”46
(Emphasis added.)
Change and Priorities. In presenting the plan to the Congress, the President
acknowledged: “Since the principle objective of the plan is more effective
enforcement of labor standards, it is not probable that it will result in savings. But,”
he added, “it will provide more uniform and more adequate protection for workers47
through the expenditures made for the enforcement of the existing legislation.”
Coverage issues, however, raised during the Truman Era reorganization — on
the one hand, direct construction by the federal government; and, on the other,
construction financed through grants and loans — have continued to be a point of
controversy into the 21st century. Similarly, legislative proposals continue to explore
the primacy of the Secretary of Labor with respect to the administration of the Davis-
Bacon Act. These issues remain unresolved.
The Eisenhower Era: A Pivotal Period?
Prevailing wage requirements (the Davis-Bacon principle) had been added to
a number of program statutes by the close of the Truman Era: moving from Davis-
Bacon coverage for direct federal construction to projects financed entirely or in part
with federal funds. During the Eisenhower Administration, such extensions of
prevailing wage coverage became more frequent.48
Some Issues of Policy. The Davis-Bacon debates of the middle 1950s
reiterated many of the earlier arguments for and against the act, and added a few new
concerns. But the debates appear to have resolved little.
46 Special Message to the Congress Transmitting Reorganization Plan 14 of 1950, March 13,
1950, Public Papers of the Presidents of the United States, Harry S. Truman, January 1 to
December 31, 1950 (Washington: GPO, 1965), pp. 210-211.
47 Ibid.
48 U.S. Congress, House Committee on Public Works, Federal Highway and Highway
Revenue Acts of 1956, report to accompany H.R. 10660, 84th Cong., 2nd sess., H.Rept. 2022
(Washington: GPO, 1971), p. 13.
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In a 1955 dissent from prevailing congressional policy, several Senators argued
that adding a Davis-Bacon provision to program legislation would expand the federal
bureaucracy, create paperwork and litigation, increase the control of the federal
agencies, and pose definitional problems with respect to classification, locality and
prevailing rates — all issues that would reemerge during the Reagan/Bush Era.49
Similarly, in 1958, Senator Strom Thurmond (then, D-S.C.) contended that DOL had
failed to administer the act properly, suggested that Davis-Bacon wage standards
were being imported from urban to rural areas (thus, raising rural wage rates), and
decried the usurpation by Washington of the rights of the States.50 The South
Carolinian raised arguments that, for the most part, would be the subject both of
debate and litigation for many decades thereafter.
Speaking from a somewhat different philosophical perspective, Senator Clifford
Case (R-N.J.) stated that the Davis-Bacon Act protects “fairminded and responsible
contractors against unfair competition from contractors who base their bids on wage
levels lower than those actually prevailing in the area.” But, he also toke note of the
protections that the act affords workers. His views were concurred in by Senator
Jacob Javits (R-N.Y.) who, seemingly harkening back to the concerns of the 1930s,
warned that “we must guard against ... the breaking down of the wage pattern in a
particular area.”51
Whatever the diversity of opinion may have been during the 1950s with respect
to the prevailing wage statute (and, however vigorous opposition to the act may have
been), Congress continued to preserve the act and to extend Davis-Bacon coverage
through the provisions in various federal program statutes.
A Changing Perspective on the Davis-Bacon Act? From a quick
review of legislative activity during the Eisenhower Era, one might reach several
tentative, preliminary, observations.
First. Attaching Davis-Bacon provisions to program statutes seems to have
been more controversial and to have sparked more heated debate than had passage
of the Davis-Bacon Act, per se.
Second. As late as the mid-1950s, many Republicans in Congress continued to
claim credit for the statute. For example, Representative Russell Mack (R-Wash.)
The two authors of the Davis-Bacon law were Senator Davis, a Republican of
Pennsylvania, and Representative Bacon, a very conservative Republican
Congressman from the State of New York. A Republican House and a
Republican Senate passed the Davis-Bacon law and a Republican President,
Herbert Hoover, signed it.
49 U.S. Congress, Senate, Federal-Aid Highway Act of 1955, report to accompany S. 1048,

84th Cong., 1st sess., S.Rept. 350 (Washington: GPO, 1955), pp. 40-41.

50 Congressional Record, April 15, 1958, pp. 6417-6427.
51 Ibid.
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So the Davis-Bacon provision we are talking about today is a 25-year-old52
Republican law.
The claim of Representative Mack notwithstanding, Davis-Bacon was not regarded
as a partisan enactment. The debate, both in committee and on the floor, involved
Democrats and Republicans on each side of the issue.
Third. At least some Members supported the act in terms of the benefits that it
held for contractors. The act, recalled Representative Thor Tollefson (R-Wash.),
“has been valuable as a remedial measure to protect contractors and craftsmen from
unfair contract bids.” He added that a Davis-Bacon provision was necessary to
eliminate existing unfair bidding advantages of contractors who pay low wages in
areas where union rates prevail.” The Tacoma Republican affirmed that the Davis-
Bacon Act had assured all contractors “[e]quality of bidding opportunity.” It protects
contractors “against unfair competition and restricts the area of competition to53
economy and efficiency.”
Fourth. The issue of the cost impact of Davis-Bacon sparked a divided opinion.
In a 1956 report on highway legislation, five Members dissented voicing complaints
about the act based upon economy.
How about the increased cost of highways if the Davis-Bacon [provision] were
added? It is variously estimated at $2 to $4 billion, which means less highway
for the money expended. The unfortunate part is that the administrative and
bureaucratic redtape, which Federal wage fixing entails, causes waste from54
which no one benefits and for which the taxpayer must bear the burden.
No source was provided for the projected cost estimate. And, conversely,
Representative Mack of Washington declared that the act simply “keep[s] wages ...
at the prevailing rate.” The act, he argued, “does not raise wages but it does prevent
wage cutting and it is wage cutting and labor standard lowering that we wish to55
prevent.” Mr. Mack stated that the Washington State Highway Commission had
endorsed the Davis-Bacon provision.
Promptly, Gardner Withrow (R-Wisc.) declared his complete agreement with
Mack that Davis-Bacon would not make the cost of highway construction “any
greater than it is now.” Representative Withrow affirmed that “the responsible road
people in the State of Wisconsin declare that the cost under the Davis-Bacon Act as
it is at the present time would not be any more than it is now. So,” he concluded,
52 Congressional Record, April 27, 1956, pp. 7187-7188.
53 Congressional Record, February 6, 1956, pp. 2098-2099.
54 U.S. Congress, House Committee on Public Works, Federal Highway and Highway
Revenue Acts of 1956, report to accompany H.R. 10660, 84th Cong., 2nd sess., H.Rept. 2022
(Washington: GPO, 1956), p. 30. The dissenting Members were Reps. George Dondero (R-
Mich.), J. Harry McGregor (R-Ohio), Bruce Alger (R-Texas), Donald W. Nicholson (R-
Mass.), and Brady Gentry (D-Texas).
55 Congressional Record, April 27, 1956, pp. 7187-7188.
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“the argument that it would greatly increase the cost of building roads is entirely a
ghost and a phantom and is not substantiated by the facts.”56
Similarly, a division of opinion had developed in the Senate. The initial
highway legislation (1955) had been silent on the matter of Davis-Bacon coverage.
Organized labor, during hearings, had urged that prevailing wage coverage be
specifically provided;57 and, when the legislation was reported, a Davis-Bacon
provision had been added. Senators Edward Martin (R-Pa.), Prescott Bush (R-
Conn.), and Norris Cotton (R-N.H.) dissented from the report of the Committee on
Public Works, arguing that this extension of Davis-Bacon requirements would
expand the Federal bureaucracy, create paperwork and litigation, increase the control
of the federal agencies, and pose definitional problems with respect to classification,
locality and prevailing rate.58 On the floor, debate was extensive; and, at the
initiative of Senator Dennis Chavez (D-N.M.), the prevailing wage language was
dropped.59 Subsequently restored by the House, the provision was retained in
conference and became law (1956).60
Fifth. The Eisenhower Era may have been a transitional era where Davis-Bacon
was concerned. Some Members seemed bewildered that the act should be
controversial. Representative Katharine St. George (R-N.Y.), for example, queried
“whether it is not a fact that the Davis-Bacon provision has been in the law for many
years, and we have never heard any objecting to it until now.” Similarly,
Representative Frank Smith (D-Miss.) noted that “[a]ll of our committee ... has voted
many times for bills which include Davis-Bacon....”61
Davis-Bacon During the 1960s
Early in the 1960s, major federal construction programs commenced in defense
and space and federal contract labor standards requirements took on a new
importance. There was also a perception, whether or not justified, that the federal
construction program was beset with labor-management problems. Some argued that
vital projects were being delayed by clashes between rival unions with jurisdictional
disputes erupting into strikes or walkouts. And it was argued that such labor troubles
were adding, unnecessarily, to the cost of public construction. There were allegations
56 Congressional Record, April 27, 1956, p. 7191.
57 U.S. Congress, Senate Subcommittee of the Committee on Public Works, National
Highway Program, hearings on S. 1048, S. 1072. S. 1160, and S. 1573, 84th Cong., 1st sess.,
February 21, 1955 (Washington: GPO, 1955), pp. 92-94, 102-103.
58 U.S. Congress, Senate Committee on Public Works, Federal-Aid Highway Act of 1955,
report to accompany S. 1048, 84th Cong., 1st sess., S.Rept. 350 (Washington: GPO, 1955),
pp. 40-41.
59 Congressional Record, May 25, 1955, p. 6969.
60 Congressional Record, June 26, 1956, pp. 10961-10969, and 10984-11004.
61 Congressional Record, April 27, 1956, p. 7186.
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of disputes over turf, involving both workers and contracting or supply firms, which,
in turn, affected the applicability of federal contract labor standards laws.
Industry Classification and Labor Standards
Since the wage requirements under Davis-Bacon were generally higher than
those under Walsh-Healey, an employer might have preferred to classify as much of
the work as possible as “manufacturing” rather than as construction per se and,
thereby, to reduce his labor costs. With defense and aerospace construction, the work
was more than simply bricks and mortar. Were a worker to install technical
electronic equipment, for example, was the work part of the process of
“manufacturing” and covered by the Walsh-Healey Act? Or, was it “construction”
and subject to the somewhat higher wage requirements of the Davis-Bacon Act? The
issue was further complicated by prefabrication of components for general
construction. Was a “batch plant” some distance from a construction site still part
of the “site of work” for Davis-Bacon purposes? These issues were not to be easily
Complicating matters further, Congress adopted the McNamara-O’Hara Service
Contract Act in 1965 mandating labor standards for service workers — but standards
different from those in either Davis-Bacon or Walsh-Healey. Thus, a technical
installation might be construction or manufacturing, or it could be a service
operation.62 In this way, both employers and employees could suddenly find
themselves on unfamiliar regulatory ground. There were also collective bargaining
agreements to consider. How work was defined (as to craft or skill) might determine
which union had jurisdiction.
The Roosevelt Subcommittee
In 1962, a Special Subcommittee on Labor, chaired by Representative James
Roosevelt (D-Calif.), was created which would provide the first full-scale hearing on
the act in nearly 30 years. Roosevelt promptly led the Subcommittee into the field
for a tour of defense and space installations in order “to gain firsthand knowledge of
the administration of the Davis-Bacon Act.” Then, formal hearings commenced. The
agenda was threefold.
... (1) How the Secretary of Labor makes his determinations as to prevailing
wages and what criteria he uses in making these determinations; (2) whether
some type of review should be provided for prevailing wage rate determinations
made by the Secretary of Labor; and (3) any other constructive proposals as to63
how the act may be improved or made more explicit.
62 See, for example the discussion in John R. Van de Water, “Applications of Labor Law to
Construction and Equipping of United States Missile Bases,” Labor Law Journal, November
1961, pp. 1003-1024. Legislation that would become the Service Contract Act had been
under consideration during the early 1960s.
63 U.S. Congress, House Committee on Education and Labor, Special Subcommittee on
Labor, Administration of the Davis-Bacon Act, hearings, 87th Cong., 2nd sess., Part 1, June
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Although Chairman Roosevelt tried to maintain the stated focus, a wide range of
complaints and suggestions were brought before the Subcommittee which met,
intermittently, through three years. In large measure, they laid the foundation for
most subsequent Davis-Bacon hearings, setting forth a 30-year agenda.
Creation of the Wage Appeals Board. When an interested party was
aggrieved by a DOL decision related to Davis-Bacon, there was little that could be
done other than to approach the Department, ask that it reconsider its findings, and
hope for the best. Creation of a formal review procedure had been suggested at least
as far back as the middle 1950s, but nothing had been set in place.
Labor Secretary Arthur Goldberg appeared before the Roosevelt Subcommittee
on June 7, 1962, and pointed to an “important innovation ... that we have under
consideration right now” but which had been deferred “pending these hearings, so as
to get the benefit of the viewpoints expressed here.” The proposal was for the
creation of “some internal review machinery within our own structure to review64
some of the determinations that are challenged.”
It quickly became apparent that creation of a review mechanism would be
controversial. Various proposals, each with a constituency of its own, were
presented. Some thought review by a panel within DOL would be adequate. Others
argued that such a system would never be wholly free from the hand of the Secretary
whose staff’s decisions were being reviewed. Judicial review was urged, but it was
argued that it would be unworkable: that it would be cumbersome and costly, and
that decisions would not be timely, an inconvenience to all involved and, possibly,
causing delay of vital federal projects. Review by GAO was yet another option; but
that, in itself, became a matter of controversy since the Comptroller General and
DOL seem frequently to have been at odds over Davis-Bacon administration. If there
were to be an in-house board, various practical administrative questions would need
to be dealt with. For example, who would appoint its members? Where would it be
housed? What would be its relationship to the Secretary, to the Administrator of the
Wage and Hour Division within DOL, and to the Office of the Solicitor within DOL?
If internal administrative appeal and review did not resolve a matter in dispute, would
there be further options?
As hearings continued through 1962 and 1963, no legislated review procedure
had been finalized. Then, on January 3, 1964, Labor Secretary Willard Wirtz,
dissenting from certain of the pending proposals, created administratively a Wage
Appeals Board (WAB) which, he noted, would be “directly responsible to the
Secretary of Labor.” The three member Board was “appointed by the Secretary of
Labor” with one of the members to be designated chairman.
The Secretary’s order affirmed that the Board “shall act as the authorized
representative of the Secretary of Labor in deciding appeals, concerning questions of
63 (...continued)
6-8, 11, and 12, 1962 (Washington: GPO, 1962), p. 1. (Hereafter cited as Special Labor
Subcommittee, Administration of the Davis-Bacon Act.)
64 Ibid., pp. 50-51. Emphasis added.
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fact and law, taken in the discretion of the Board, from wage determinations issued
under the Davis-Bacon Act and its related minimum wage statutes....” On questions
of law, the order decreed, the WAB would act on the advice of the Solicitor at DOL
who would also represent the Department at each proceeding.65
Six months later, when Labor Solicitor Charles Donahue appeared before the
Subcommittee (June 23, 1964), he assured the Members that DOL’s review process
was in place and functioning.66 Some viewed the Secretary’s action as a preemptive
strike, since legislation to create a review procedure had been under active
consideration by the Subcommittee through several years. Representative Roman
Pucinski (D-Ill.) noted: “I think that the Department just saw the handwriting on the
wall.”67 Ultimately, when the 1964 Davis-Bacon amendments were enacted,
Congress did not include language dealing with a review procedure, the arrangement
initiated by the Secretary remaining in place.68
The Fringe Benefits Amendment (1964). Stability and fairness within the
construction market had been primary considerations of the Davis-Bacon Act in

1931. It was alleged that, in the absence of a prevailing wage requirement,

contractors would bid for public work on the basis of low wages and adverse working
conditions that were inconsistent with those prevailing locally. In 1964, upon that
same assumption, Congress extended the definition of “prevailing wage” to include
fringe benefits.69
Members supporting a fringe benefit component argued that contractors,
working under a collective bargaining agreement, can normally be expected to
provide unit members with fringe benefits: health insurance, paid vacation time, etc.
Non-union firms may offer similar benefits but they are under no contractual
obligation to do so. Thus, some reasoned, non-union contractors who offer few or
no fringe benefits to their employees might be able unfairly to underbid union or
other non-union employers who offer a portion of their total compensation package
in the form of such benefits.
65 Federal Register, January 4, 1964, pp. 118-119. Emphasis added.
66 U.S. Congress, House Committee on Education and Labor, General Subcommittee on
Labor, Amendments to the Davis-Bacon Act, hearings on H.R. 7075, 88th Cong., 2nd sess.,
January 22, June 23, 24, 26, August 4 and 5, 1964 (Washington: GPO, 1964), pp. 42-43.
(Hereafter cited as Committee on Education and Labor, Amendments to the Davis-Bacon
67 Ibid., p. 121.
68 Congressional Quarterly Almanac, 1964 (Washington: Congressional Quarterly, Inc.,

1965), pp. 576-577.

69 William Naumann of Tucson, speaking for the Associated General Contractors, observed
that inclusion of fringe benefits within the concept of wage “actually can have some
stabilizing effect, because it then meant that every contractor, regardless of what his position
was, who marched in to bid or perform on any Government work within an area where
fringe benefits were, as a matter of fact, prevailing, that everybody came on the same basis.”
Committee on Education and Labor, Amendments to the Davis-Bacon Act, p. 144.
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Critics suggested that addition of a fringe benefit component would increase the
cost of public construction. They argued that it would be difficult to calculate the
value of fringe benefit packages that often varied greatly from one firm or
employment situation to another. Finally, some asserted that, even were a fringe
benefit component justified, it ought not to be considered as a free-standing issue but,
rather, as part of general Davis-Bacon reform.
When the Roosevelt Subcommittee reported legislation adding a fringe benefit
component to Davis-Bacon wage calculations, it seems to have generated little
controversy. The provision was supported by the Johnson Administration. Called
up in the House on January 28, 1964, it was approved by a vote of 357 yeas to 50
nays. The Senate approved the bill by a voice vote on June 23, 1964.70
Suspension of the Davis-Bacon Act, 1971
The original Davis-Bacon Act of 1931 contained a provision which “[i]n the
event of a national emergency” authorized the President to suspend the statute. But,
the authors of the Davis-Bacon Act had legislated in broad terms. The concept of
“national emergency” was not defined, nor was it clear how long a suspension might
last. Before considering the Nixon suspension of the Davis-Bacon Act in 1971, it
may be useful to review, briefly, Franklin Roosevelt’s suspension of the act in 1934.
The Roosevelt Precedent (1934)
On June 5, 1934, President Roosevelt, acting upon the advice of the Secretary
of Labor and the Administrator of Public Works, suspended Davis-Bacon as a matter
of administrative convenience: to allow various New Deal statutes to function more
smoothly.71 He made no attempt to define “national emergency” other than noting
that concurrent operation of the two laws (the Davis-Bacon Act and the National
Industrial Recovery Act) caused “administrative confusion and delay” which could
be avoided were Davis-Bacon suspended.
What transpired thereafter is not immediately clear; but, on June 30, 1934 (just
three weeks later), President Roosevelt issued another proclamation. He stated that
a revocation of the June 5 proclamation “would be in the public interest” and
reinstated Davis-Bacon.72 The President does not appear to have offered any further
public explanation for his actions.73
70 Congressional Quarterly Almanac, 1964, Congressional Quarterly, Inc., Washington

1965, pp. 576-577.

71 The Statutes at Large of the United States of America from March 1933 to June 1934, vol.
XLVIII, Part 2 (Washington: GPO, 1934), pp. 1745-1746.
72 The Statutes at Large of the United States of America from January 1935 to June 1936,
vol. XLIX, Part 2 (Washington: GPO, 1936), p. 3400.
73 More light might be shed upon the suspension of the Davis-Bacon Act and the
administrative history of the statute through archival research. Any conclusions, here, ought
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The Nixon Suspension (1971)
Through 1970 and 1971, President Richard Nixon, among other inflation-related
concerns, expressed an intense interest in the wage-price structure in the construction
industry. On January 18, 1971, he conferred with the tripartite Construction Industry
Collective Bargaining Commission,74 chaired by labor economist John Dunlop, and
urged that body “to do something about curbing the wage-price spiral in
construction.” Various options were discussed, Labor Secretary James Hodgson
reported, including suspension of Davis-Bacon.
Seeming to prefer a private sector solution, Mr. Nixon set a 30-day period
during which the Commission should deal with the concerns he had raised.75
Negotiations followed.76 Despite meetings between AFL-CIO President George
Meany, spokespersons for the Building and Construction Trades Department (BCTD,
AFL-CIO), OMB Director George Shultz, Secretary Hodgson, Dunlop and others,
no concrete solution was found.
Lifting the Davis-Bacon Requirements. On February 23, 1971, Mr.
Nixon, suspended Davis-Bacon.77 He noted that the nation “is now confronted by a
set of conditions involving the construction industry which, taken together, create an
emergency situation.” He noted that collective bargaining settlements “are excessive
and show no signs of decelerating.” He pointed to unemployment, to “more frequent
and longer work stoppages,” to a wage/price spiral in the construction industry and
to their impact upon the general economy. Therefore, he suspended the act and, with
it, “any Executive Order, proclamation, rule, regulation or other directive providing
for the payment of wages, which provisions are dependent upon determinations by
the Secretary of Labor under the Davis-Bacon Act.”78
While President Nixon admitted that his action was directed at organized labor,
he also stated that “wage rates on Federal projects have been artificially set by this
law rather than by customary market forces.” He affirmed his belief that “this
preferential arrangement does not serve the best interests of either the construction
industry or the American public at a time when wages are under severe upward
73 (...continued)
to be regarded as tentative.
74 John Herling’s Labor Letter, January 16, 1971, p. 1. The Commission was created by
President Nixon under Executive Order 11482, September 22, 1969.
75 John Herling’s Labor Letter, February 13, 1971, p. 1.
76 Public Papers of the President of the United States: Richard Nixon, Containing the Public
Messages, Speeches, and Statements of the President, 1971 (Washington: GPO, 1971), p.

165. (Hereafter cited as Nixon Papers.)

77 CRS Report 79-249, The Davis-Bacon Act Suspension of 1971: The Nixon
Administration, Organized Labor and the Prevailing Wage Statute in Federal and Federally
Assisted Construction, by William G. Whittaker. (archived report)
78 Weekly Compilation of Presidential Documents, March 1, 1971, p. 286.
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In addition, the President set aside the Davis-Bacon provisions that had been
written into the various program statutes (then, more than 50 of them) and declared,
further: “I am calling upon States and other governmental bodies with similar
statutes to take similar action.”79
Some Questions and Reactions. The suspension appears to have been
less an attack upon the act, per se, than an effort to encourage labor and management
(but, primarily labor) to adopt what the President believed was a more responsible
wage/price policy. He observed: “It is evident now ... that decisive Government
action is needed to protect the public interest while labor and management continue80
their efforts to attack the causes of this problem.”
Many questions arose. Were inflationary wage settlements in the construction
industry (of which federal construction was only a part) what Congress had in mind
in crafting the act’s “national emergency” provision? Did the President have
authority, under that provision, to set aside not only Davis-Bacon but also the
prevailing wage provisions of the federal program statutes enacted by the Congress
through several decades? And, could the President preempt the various “little Davis-
Bacon Acts” of the states?
“We believe,” Hodgson noted, that the “suspension should help produce more
reasonable settlements throughout the industry and restore a better balance to the
bargaining process.” While he defined neither “reasonable” nor “a better balance,”
his intent seemed clear. If the unions would moderate their demands and accept less
costly wage settlements, then balance could be restored and with it, perhaps, Davis-
Bacon. Meany branded the suspension as “punitive against workers” and “an open81
invitation to unscrupulous employers to exploit workers.” And labor analyst John
Herling wrote that suspension had “brought cheer to the U.S. Chamber of
Commerce” which for decades “has battled to remove Davis-Bacon ... from the
Statute Books.”82
Some of the state prevailing wage laws predated enactment of the federal
statute. How would the suspension affect the practices of the several states? Peter
G. Nash, then-U.S. Solicitor of Labor, declared: “The weight of authority supports
the conclusion that States are now preempted (in effect a ‘negative’ preemption) from
applying their prevailing wage standards laws to Federally-assisted construction work
subject to DBRA [Davis-Bacon and Related Acts] wage protections prior to February
23, 1971.”83 But not everyone agreed. In New York, for example, Commissioner of
79 Nixon Papers, p. 199-200.
80 Ibid., p. 200.
81 John Herling’s Labor Letter, February 27, 1971, p. 1.
82 John Herling’s Labor Letter, March 6, 1971, p. 1.
83 See Peter G. Nash Solicitor of Labor, Memorandum of Law, dated February 26, 1971.
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Labor Louis Levine affirmed that wages on public construction work would
“continue to be based on the State Prevailing wage rate law.”84
Restoration of the Act. At the Administration’s urging, labor and
management in the construction industry continued to meet under Dunlop’s
guidance.85 On March 29, 1971, just over a month after the suspension, Mr. Nixon,
in Executive Order 11588, declared that the suspension was no longer necessary “due
to the establishment of an equitable stabilization plan.” Having created the
Construction Industry Stabilization Committee (a tripartite body appointed by the
Secretary of Labor and directed by John Dunlop, part of a larger regulatory
wage/price apparatus for the construction industry), he now restored the Davis-Bacon
Act, together with the various supplemental regulations governing its implementation86
and enforcement.
The Carter Era: New Conflicts
Concerning the Davis-Bacon Act
Davis-Bacon had been more-or-less continuously a focus of attention for the
policy community since the middle 1950s. During and shortly after the Carter
Administration, however, the act passed through a period of somewhat higher
visibility with arguments, pro and con, voiced with unusual vigor. The basis of this
period of tension extends back to the original debates over the prevailing wage
GAO Enters the Fray
The bills that evolved into the Davis-Bacon Act of 1931 were crafted in part in
response to rulings from then Comptroller General J. R. McCarl of the General
Accounting Office (GAO) to the effect that the federal government, when contracting
for construction work, was forced to accept the lowest responsible bid. The concept
of “responsibility” during the period generally related to fiduciary matters and the
ability of the bidder to produce the work for which a contract was let. Wages and
working conditions were not factors to be considered. Given this interpretation, as
Labor Secretary Doak explained, “the only course we had was to resort to
legi slation.”87
84 John Herling’s Labor Letter, March 6, 1971, p. 1.
85 In John Herling’s Labor Letter, April 3, 1971, pp. 2-3, Herling suggests that the
Administration quickly came “to comprehend the legal quagmire into which it might sink
as a result of the suspension.”
86 Weekly Compilation of Presidential Documents, April 5, 1971, pp. 581-585.
87 U.S. Congress, Senate Committee on Manufactures, Wages of Laborers and Mechanics
on Public Buildings, hearings, 71st Cong, 3rd sess., February 3, 1931 (Washington: GPO,

1931), p. 2.

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Comptroller General McCarl had reviewed early versions of the Davis-Bacon
legislation (not altogether favorably) and had suggested certain refinements.
Although his advice was not immediately acted upon, the issues he raised remained
and provided a basis for continuing GAO interest in the statute.88
Under Davis-Bacon, the General Accounting Office has responsibilities with
respect to debarment of contractors found to be in violation of the statute and, in that
context, with management of certain aspects of Federal expenditures. (40 U.S.C.
276a(2)) In addition, it has functions related more broadly to oversight of federal
spending. Thus, beyond historical circumstance, the agency has reason to be
interested in the act.
Oversight Testimony (1962). On June 12, 1962, J. E. Welch, GAO Deputy
General Counsel, appeared before the Roosevelt Subcommittee which was then
conducting oversight hearings on the Davis-Bacon Act. Welch affirmed that since
1935, “we [GAO] have examined or passed upon practically every Davis-Bacon Act
case in which irregularities have been reported.” He stated that GAO’s “experience
indicates” that the methods and procedures adopted by DOL for administration of the
act “have not kept pace” with the requirements of the period. But, he assured the
panel that GAO was neutral on whether “the Davis-Bacon Act should be either89
continued or repealed.”
A lengthy exchange attempted to clarify the relationship between GAO and
DOL where Davis-Bacon was concerned. Though no precise conclusion seems to
have been reached, it quickly became clear that the two agencies were not operating
in complete harmony. Welch pointed to an ongoing series of negotiations between
the Comptroller, the Solicitor at DOL, and their aides which had seemed more nearly
to define areas of disagreement than to resolve conflicts. “We feel,” Welch
concluded, “that if the Department of Labor is to be given final responsibility [with
respect to Davis-Bacon] that should be accomplished by appropriate amendment to90
the act.”
Both GAO and the Subcommittee appear to have set the issue aside at this point.
However, GAO added as a supplement to its oral testimony extended documentation91
questioning DOL’s administration of the act.
GAO Urges Repeal of Davis-Bacon (1979). Beginning in the early
1960s,92 GAO issued a series of reports that were generally critical of the Department
of Labor’s administration of the Federal prevailing wage law. With each report in
turn, GAO’s impatience with what it regarded as the flawed administration of the act
88 Congressional Record, February 28, 1931, pp. 6504-6508.
89 Special Labor Subcommittee, Administration of the Davis-Bacon Act, 1962.
90 Ibid., pp. 319-322.
91 Ibid., pp. 325-454.
92 The record of GAO through the first 3 decades of Davis-Bacon history might usefully be
reviewed. The period from the early 1960s to the early 1980s, however, seems to constitute
a discernable period.
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seemed to grow.93 Finally, on April 27, 1979, it issued an extended summary review
titled bluntly, The Davis-Bacon Act Should Be Repealed.
The report was immediately controversial: the scholarship upon which it was
based was questioned by some supporters of the act. Some wondered whether it was
appropriate for the General Accounting Office to challenge, in so direct a manner, a
policy which Congress had reaffirmed through nearly half a century.94 Nonetheless,
this latter study, together with the several earlier reports, provided a rich resource for
critics of the statute to draw upon.95
In urging Congress to reverse its support for Davis-Bacon, GAO set out a series
of arguments. First. “Significant changes in economic conditions, and the economic
character of the construction industry since 1931, plus the passage of other wage
laws, make the act unnecessary.” Second. After nearly 50 years, DOL “has not
developed an effective program to issue and maintain current and accurate wage
determinations; it may be impractical to ever do so.” Third. “The act results in
unnecessary construction and administrative costs of several hundred million dollars
annually (if the construction projects reviewed by GAO are representative) and has
an inflationary effect on the areas covered by inaccurate wage rates and the economy
as a whole.”96
Although the 1979 GAO report was influential, judging from the frequency with
which it has been cited, it did not win universal acclaim. During hearings in June

1979, several Members of Congress puzzled over GAO’s activist stance.

Representative Frank Thompson (D-N.J.), for example, asked Comptroller General
Elmer Staats how much of GAO’s work was undertaken at its own initiative. Staats
responded, in part, by saying that he believed that “all of these” Davis-Bacon studies
had been undertaken at GAO’s own initiative.97
Ray Marshall, University of Texas economist and Secretary of Labor when the
GAO study was released, charged that, as economic analysis, the report was “very
sloppy” and had “little credibility.”98 GAO defended its analysis but noted that
93 A listing of the various GAO reports appears in U.S. General Accounting Office, The
Davis-Bacon Act Should Be Repealed: Report to the Congress by the Comptroller General
of the United States, HRD-79-18, April 27, 1979, p. 115. (Hereafter cited as GAO, The
Davis Bacon Act Should Be Repealed.)
94 See Business Week, July 9, 1979, p. 62; Congressional Quarterly Weekly Report,
November 29, 1979, p. 2648; Federal Times, May 26, 1980, p. 9; and The Wall Street
Journal, July 16, 1986, p. 22.
95 See CRS Report 94-908, Davis-Bacon: The Act and the Literature, by William G.
96 GAO, The Davis Bacon Act Should Be Repealed, front cover.
97 U.S. Congress, House Committee on Education and Labor, Subcommittee on Labor
Standards, Oversight hearings on the Davis-Bacon Act, 96th Cong., 1st sess (Washington:
GPO, 1979), pp. 219-220, 52-53.
98 Press Briefing by Secretary of Labor F. Ray Marshall, July 17, 1979, p. 44. (A
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“[w]ith minor exceptions [DOL] ... disagreed with almost everything presented in
this report.”99 Three congressional committees conducted hearings on Davis-Bacon
during the period, focusing heavily upon the GAO report. At each, DOL and GAO
representatives voiced areas of disagreement concerning the report and the act.
Although the hearings did not resolve the methodological and interpretative conflicts
that had come to surround the act, they did give higher visibility to the issue of
Davis-Bacon reform.100
Inter-Agency Relations and Contract Labor Standards
Coverage disputes of the early 1960s (whether to apply Davis-Bacon or Walsh-
Healey labor standards protections) were never fully resolved.101 As mentioned
previously, Congress passed the McNamara-O’Hara Service Contract Act (SCA) in

1965. It extended labor standards requirements to federal service contracts.

Amendments to the SCA were adopted in 1972 and 1976 — in each instance, over
contractor objections. The jurisdictional issue, thus, became a three-way contest.102
Bureaucratic Controversy. The three statutes, similar and complimentary
but not identical, have different regulatory and economic impacts. Thus, which of
the statutes applied to a particular project was of some considerable interest to
employers, to workers, to the federal agencies as consumers of construction and
goods and services — and to the taxpayer.
In 1974, the Office of Management and Budget (OMB) formed an inter-agency
task force to review implementation of McNamara-O’Hara; but, when the review was
complete, DOL refused to concur in its findings and a stalemate resulted. Again, in
January 1977, during the transition from the Ford to Carter Administrations, OMB
acted unilaterally, mandating administrative change by directive. This move was
reversed two weeks later when the OMB’s Office of Federal Procurement Policy
98 (...continued)
mimeographed press release.)
99 GAO, The Davis Bacon Act Should Be Repealed, pp. 16-17.
100 See U.S. Congress, Senate Committee on Banking, Housing, and Urban Affairs,
Subcommittee on Housing and Urban Affairs, Davis-Bacon Legislation, hearing, 96th Cong.,st

1 sess., May 2, 1979 (Washington: GPO, 1979); and U.S. Congress, Senate Committee onth

Labor and Human Relations, Military Construction Authorization Act, 1980, hearings, 96st
Cong., 1 sess., July 17 and 19, 1979 (Washington: GPO, 1979).
101 The Walsh-Healey Public Contracts Act (1935) provides basic labor standards
protections for workers employed in the fabrication of goods purchased, under contract, by
the federal government.
102 Concerning the evolution of the McNamara-O’Hara Act, see Brian M. Kingston, “The
Service Contract Act of 1965: A Review,” The Air Force Law Review, vol. 20, no. 3 (1978),
pp. 286-315; and Beverly Hall Burns, “The Service Contract Act of 1965,” Villanova Law
Review, April 1984, pp. 435-476.
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(OFPP) withdrew the directive “in view of the need of the new Administration to
consider the issues involved.”103 Strains persisted.
During the summer of 1978, a disagreement developed between OFPP and
DOL. The OFPP Administrator advised the Department of Defense (DOD) that
contracts for overhaul and rebuilding of certain aircraft engines would fall under
Walsh-Healey (effectively, the federal minimum wage) rather than the locally
prevailing rate under McNamara-O’Hara.104
At once, the House Subcommittee on Labor-Management Relations commenced
hearings on the issue (August 1978);105 and, at the request of several key Members
of Congress, OFPP stepped back, the matter being referred to Attorney General
Griffin Bell for a legal decision concerning the OFPP’s authority. In March 1979,
Bell found in behalf of DOL. Whether a particular class of contracts is covered by
Walsh-Healey or the SCA, Bell affirmed, is up to the Secretary of Labor. But he
reminded President Carter that the Secretary was “subject, of course, to your
supervision and direction as Chief Executive.”106
Another interagency dispute developed in June 1979 when DOL notified the
General Services Administration (GSA) that automatic data processing contracts, in
which services were provided, would be subject to SCA. DOD objected that meeting
SCA prevailing wage standards would raise wages and disturb the salary structure in
the industry. Spokesmen for industry agreed. The contractor and the contracting
agency found themselves in conflict with DOL.
At this juncture, GAO issued a report arguing that McNamara-O’Hara should
not be applied to service employees of data processing and high-technology firms.107
Industry, taking a firmer stance, threatened not to enter into federal automatic data
processing contracts at all if DOL continued to insist that SCA applied to workers in
103 Bureau of National Affairs, Daily Labor Report, January 26, 1977, p. A9; and February

10, 1977, p. A10. (Hereafter cited as DLR.)

104 Since 1964, Wirtz v. Baldor Electric Company (337 F 2d 518 (D.C. Cir. 1964)), DOL has
relied on the minimum wage under the FLSA for Walsh-Healey purposes.
105 U.S. Congress, House Committee on Education and Labor, Subcommittee on Labor-
Management Relations, Oversight Hearing on the Implementation of the Service Contractthnd
Act, hearing, 95 Cong., 2 sess., August 10, 1978 (Washington: GPO, 1978).
106 DLR, March 23, 1979, pp. D1-D3.
107 U.S. General Accounting Office, Service Contract Act Should Not Apply to Service
Employees of ADP and High-Technology Companies, GAO/HRD-80-102, September 16,
1980. In early 1983, GAO moved a step further with its report, The Congress Should
Consider Repeal of The Service Contract Act, GAO/HRD-83-4, January 31, 1983.
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that field.108 An outright clash was avoided for the moment. Given the Bell decision
(noted above), such policy conflicts were left in the hands of President Carter.109
A Task Force Formed (1978-1980). In August 1978, OFPP convened an
Inter-Agency Task Force to review Davis-Bacon and SCA operation. However, the
Task Force seems to have been overtaken by events: the independent but somewhat
parallel oversight by the House Subcommittee on Labor-Management Relations
(summer 1978) and the determination rendered by Attorney General Bell (spring
1979), each discussed above. In addition, there were changes in staff within the
several agencies which seems to have contributed to a shift both of focus and of110
The only product resulting from the work of the Inter-Agency Task Force may
have been a listing of policy options and even this seems to have been “essentially111
shelved for two years.” During hearings (summer 1979), Senator Orrin Hatch (R-
Utah) requested from Labor Secretary Ray Marshall copies of all the
recommendations of the Task Force and asked, as well, for copies of any policy
options that were rejected. DOL agreed to ascertain what could be made available112
to the Committee on Labor and Human Resources.
If the Task Force report (with the related documents) was made available to the
Senate, it does not appear to have been generally available to the public. Early in
1980, the U.S. Chamber of Commerce filed for the materials under the Freedom of
Information Act (FOIA). When the FOIA action failed to produce the documents,
the Chamber brought suit in the U.S. Court for the District of Columbia (June 1980),
seeking an order for their release. Legal action by the Chamber continued into 1981;
but, in the wake of the 1980 elections and with the advent of the Reagan
Administration, the issue may have been rendered moot.113 On March 18, 1981,
Senator Hatch released a document titled: Options Paper, Inter-Agency Review of
Contract Wage Laws. A brief statement of the issues, the Options Paper offered few
108 Lawrence Mosher, “Computer Firms Say to the Feds: Fix the Machines Yourself,”
National Journal, August 4, 1979, pp. 1287-1288.
109 DLR, October 7, 1980, pp. A8-A9.
110 U.S. Congress, Senate, Committee on Labor and Human Resources, Subcommittee on
Labor, Oversight on the Davis-Bacon Act, hearings, 97th Cong., 1st sess., April 28 and 29,

1981 (Washington: GPO, 1981), pp. 40-41.

111 Ibid.
112 U.S. Congress, Senate Committee on Labor and Human Resources, Military Construction
Authorization Act, 1980, hearings, 96th Cong., 1st sess., July 17 and 19, 1979 (Washington:
GPO, 1981), pp. 211-237.
113 From the outside, the extent of the work of the Task Force is not clear; nor are the
maneuvers or motivations of the several parties involved. But, with the change of
Presidential administrations, there was also adopted a change of policy toward the Davis-
Bacon Act. See discussion below.
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new insights, no new documentation and little information about the work of the task
force. 114
“Reforming” the Davis-Bacon Act Administratively
With growing Davis-Bacon reform pressure, the Carter Administration115
(December 1979) published proposed regulations governing the act. DOL then
reviewed, through many months, the comments that it received and, on January 16,
1981, during the closing days of the Carter Presidency, published the regulations in
final form to take effect on February 14, 1981.116
The Initial Reagan Administration Proposals
Once in office, President Reagan decided to review all pending regulations,
rather than to allow them to go into effect as they stood. The Carter regulations were
withdrawn for further study. Newly developed Reagan Administration Davis-Bacon
regulations were proposed in August 1981 with a call for comment.117 On May 28,

1982, final regulations were published to take effect on July 27, 1982.118

In a memorandum to Vice President George Bush (and to members of the
President’s Task Force on Regulatory Relief which the Vice President chaired),
Labor Secretary Raymond Donovan affirmed that “the final rule should be very well
received by contractor groups.” He also acknowledged that labor may react
unfavorably.”119 Secretary Donovan was right on both counts.
Organized labor charged that the new regulations were a “back door attempt to
nullify the law.” The AFL-CIO’s Executive Council added that the regulations are
“a laundry list of virtually every proposal offered over the years” by contractor
associ at i ons. 120
In contrast, the Chamber of Commerce’s Washington Report termed the
regulations a “major improvement,” noting that the business community “including
construction trade associations ... has been working for years to abolish or amend the
Davis-Bacon law and the regulations that implement it.” The Associated Builders
114 DLR, June 5, 1980, pp. A6-A7, and E1-E6, and March 30, 1981, pp. A2-A6.
115 Federal Register, December 28, 1979, p. 77026.
116 Federal Register, January 16, 1981, p. 4306.
117 Federal Register, August 14, 1981, p. 41428.
118 Federal Register, May 28, 1982, p. 23644.
119 DLR, May 28, 1982, p. A6.
120 DLR, May 27, 1982, pp. A1 and F1.
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and Contractors noted approvingly: “These new regulations will definitely make it
easier and more desirable for contractors to bid on federal projects.”121
The regulations issued on May 28, 1982, may be viewed as a distillation of
policy questions remaining from the initial discussion of the act in the 1920s and

1930s and reviewed, variously, since that time. They dealt primarily with five areas.

First. Under the pre-Reagan system, a wage rate paid to 30% of the
workers in a craft in a locality, absent a more broadly-based rate, could be termed
“prevailing” for Davis-Bacon purposes. The “30 percent” rule was now to be
replaced by a “50 percent” rule.
Second. It had been charged that DOL, in setting locally prevailing wage
rates, had been “importing” urban rates for projects in rural areas. The new
regulations placed strict limits upon this practice.
Third. In determining Davis-Bacon wage rates, DOL was said to have
included within its data base wages paid on other federal (Davis-Bacon-covered)
projects which, it was charged, could have the effect of ratcheting up the base
Fourth. The new regulations expanded the potential use of “helpers”
(unskilled, general utility workers) on federal construction projects. (Industry
argued that this would reduce the cost of federal construction, open work options
for the unskilled, and allow employers greater flexibility. Labor argued that it
could lead to craft fragmentation, decrease employment of trained workers, and
reduce the pay of workers employed on federal contract construction work.)
Fifth. Under the Copeland “anti-kickback” Act of 1934, contractors are
required to file weekly payroll reports and an affirmation of compliance with the
Davis-Bacon pay requirements. The new regulations retained the affirmation of
compliance but required submission of payroll records only in
enforcement/compliance actions.
All of the changes were opposed by organized labor. But, it appears, the provisions
dealing with the “helper” regulations and the Copeland Act’s reporting requirements
were of primary importance to the unions.122
The New Regulations Challenged in Court
On June 11, 1982, the Building and Construction Trades Department (BCTD)
of the AFL-CIO (with others) filed suit to block implementation of the new
regulations.123 On July 22, 1982, just as the regulations were to be given effect,
Judge Harold Greene of the U.S. District Court for the District of Columbia granted
121 Washington Report, June 8, 1982, pp. 1 and 20.
122 See Davis-Bacon Act and New Department of Labor Regulations, by Vincent Treacy.
January 18, 1985, 6 p.
123 DLR, June 11, 1982, pp. A9-A10, E1-E5.
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a preliminary injunction. Then, on December 23, 1982, Judge Greene issued a final
decision, essentially favorable to the union position.
On one point, Judge Greene ruled in favor of Secretary Donovan: that the
Secretary had acted properly in substituting a new “50 percent” rule for the
longstanding “30 percent” rule. With that single exception, however, he declared the
regulations invalid and “permanently enjoined [the Secretary and his agents] from
enforcing or giving any effect to” the new rules. “[F]ifteen Secretaries of Labor
serving eight Presidents have never altered the regulatory scheme. The present
Secretary’s claim to have discovered a wholly different congressional intent,” Judge
Greene affirmed, “rings hollow in the light of history.”124
Both parties appealed. In January 1983, the Department of Justice, on behalf
of the DOL, challenged Judge Greene’s decision. In a parallel move, the BCTD
announced that it would appeal that portion of Judge Greene’s decision that was
favorable to the Secretary: i.e., the issue of the “30 percent” rule.125
On July 5, 1983, the U.S. Court of Appeals for the District of Columbia issued
a split decision. It stated that the legislative history of the act, though “not crystal
clear,” “suggests that Congress contemplated that the Secretary’s authority to
determine prevailing wages extended to finding the best way to do so.”
In general, the Court deferred to the authority of the Secretary. First. The
Secretary was permitted to implement the “50 percent” rule and/or an averaging
procedure. Second. The right of the Secretary to exclude distant urban data from
rural wage rate calculations was sustained. Third. The Secretary was allowed to
exclude wage data from federal projects except in cases where no suitable alternative
data were available. Fourth. The Appeals Court partially approved and partially
denied the new rules on the use of “helpers” — directing that DOL amend the
proposed regulation. DOL promulgated a revised final rule dealing with “helpers”
on January 24, 1989, which won court approval. Congress, however, then refused
to fund implementation of the “helper” rule and it remained as an open issue. Fifth.
The Appeals Court concurred with the District Court that the changes in the reporting
requirements of the Copeland Act would weaken Davis-Bacon enforcement, would
conflict with statutory intent, and, therefore, would be beyond the authority of the
Secretary. The Department continued to experiment with language to alter the
Copeland reporting requirements and the issue became the subject of various
legislative proposals, none of them enacted. Gradually, the Copeland reporting issue
seemed to disappear from the policy agenda, the prior requirements remaining in
t act . 126
124 DLR, December 27, 1982, pp. A9-A10, E1-E2.
125 DLR, January 24, 1983, pp. A6-A7.
126 DLR, July 6, 1983, pp. A12-A14 and D1-D14.
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The U.S. Supreme Court, in January 1984, declined to hear a further appeal by
the Building Trades.127 Thus, after five years of active consideration, DOL’s
“reform” efforts had been sustained in three of five areas. But in two areas, the
“helper” issue and the Copeland reporting requirements, the position of the
Department had been denied.
Suspension of the Davis-Bacon Act, 1992-1993
As was discussed above, two suspensions occurred during the first 6 decades of
the act’s history. In 1934, President Roosevelt suspended the act, briefly, for reasons
that seem to have amounted to administrative convenience. In 1971, President Nixon
suspended the act, again briefly, justifying his action in economic terms: to apply
pressure upon construction contractors and building trades unions as part of his
wage/price control strategy.
In early 1992, there were published reports that a third suspension of the statute
might be under consideration: this time under the authority of President George
Bush. Such consideration seems to have commenced during the first months of that
year. In June, it was reported that a nationwide suspension was “more likely than
not.”128 But, months passed and the issue seemed to drop from view.
The Bush “Partial” Davis-Bacon Suspension
On October 14, 1992, President Bush, by Proclamation 6491, ordered Davis-
Bacon suspended for certain jurisdictions in the states of Florida, Louisiana and
Hawaii. Taking note of hurricanes that had recently struck those states, the President
declared: “... I find the conditions caused by Hurricanes Andrew and Iniki to
constitute a ‘national emergency’ within the meaning of Section 6 of the Davis-
Bacon Act.” The suspension was to continue “until otherwise provided.”129
In suspending the act, President Bush added several elements to the concept of
“national emergency” which, variously defined, had served as the basis for
presidential action. First, suspension might enhance employment opportunities. The
DOL, it was noted, had estimated that suspension “could result in the creation of as
many as five to eleven thousand new jobs in the construction industry in these
States.” (No explanation of the basis for this estimate was given.) Second,
suspension might be viewed as an economy measure. Payment of the locally
prevailing wage (the Davis-Bacon rate, set by the Administration’s Secretary of
Labor) would “increase the costs” of rebuilding facilities in the several areas. Again,
“more construction companies will be able to bid on Federal construction contracts”
127 DLR, January 17, 1984, pp. A11-A12.
128 DLR, April 22, 1992, p. A10. See also DLR, April 23, 1992, p. A15, and June 5, 1992,
p. A12.
129 Proclamation 6491, reproduced in Weekly Compilation of Presidential Documents, vol.

28, no. 42, October 19, 1992, pp. 1936-1937.

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if Davis-Bacon were suspended. Third, there might be racial/ethnic considerations.
In the Administration’s opinion:
For more than half a century, the Davis-Bacon Act has imposed non-market wage
rates in the construction industry. Unfortunately, the Davis-Bacon Act has
historically operated to exclude semi-skilled workers, including many African-
Americans, Hispanics, and new immigrants, from work on Federal contracting
Fourth, there was the issue of the federal deficit. “In addition, by having the
Government adhere to costly local wage settlements in the construction industry, the
Davis-Bacon Act has added billions of dollars to the cost of Federal construction,”
the White House statement asserted.130
The assumptions set forth in the suspension order and accompanying documents
were contestable and, almost at once, sparked dissent. But, laying aside such policy
debate, some observers felt that Hurricanes Andrew and Iniki may have been less a
reason for the suspension than a justification for an action already under
consideration. 131
Reaction and Reinstatement
Opinion was divided on the suspension. Segments of the construction industry,
especially those associated with non-union (or anti-union) policies, applauded the
suspension, some suggesting the economy could be strengthened were the act
suspended everywhere.132 Organized labor was distressed by the President’s action,
suggesting that it was “a desperate attempt to win business support in electoral-rich
Florida and Louisiana.”133 AFL-CIO President Lane Kirkland suggested that
residents of the affected states would be “victimized again” as “[u]nqualified
contractors” become involved in the reconstruction process.134
Representative William Ford (D-Mich.), Chairman of the House Committee on
Education and Labor, was critical of the Bush proclamation. Mr. Ford charged the
President with using the “desperation” of residents of the affected areas “as an
opening to cut wages and please his U.S. Chamber of Commerce campaign
contributors.”135 Reportedly, Mr. Ford pledged to “look into the President’s action
130 Press Release, The White House, Office of the Press Secretary, Emergency Suspension
of the Davis-Bacon Act, October 14, 1992, 2 p. A careful review of the economic data upon
which these factors rest might be useful.
131 DLR, April 22, 1992, p. A10; April 23, 1992, p. A15; and June 5, 1992, p. A12.
132 On this general issue, see Donald Lambro, “Some Sound Advice for the President-Elect,”
Human Events, January 23, 1993, p. 17.
133 AFL-CIO News, October 26, 1992, p. 1.
134 DLR, October 19, 1992, p. A11.
135 DLR, October 19, 1992, pp. A10-A11.
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when the new 103rd Congress convenes.”136 Early in the 103rd Congress, Senator
Daniel Inouye (D-Hawaii), a state the suspension was putatively intended to assist,
introduced legislation which called upon the President to amend the suspension
proclamation “to eliminate all references to the State of Hawaii and Hurricane
Through the years, many Members of Congress had been critical of the entire
premise upon which the Davis-Bacon Act rested. If a suspension were useful, total
repeal might be even better, some reasoned. Early in the 103rd Congress, Senator
Larry Craig (R-Ida.) proposed the latter. “Now, at a time when this President
[William Clinton] is driving toward deficit reduction,” Senator Craig affirmed, “...
let me suggest to this President that, if he truly means to make meaningful cuts in the
budget, bring down the deficit, bring down the debt, one of the ways to do it is to put
Federal construction and private construction on an equal footing.”138
Early in the 103rd Congress, the concerns of Representative Ford and of Senator
Inouye were addressed. On March 6, 1993, President Clinton issued a proclamation
reversing that of his predecessor, George Bush. The Clinton proclamation (No.
6534) was a simple restoration of the full force of the Davis-Bacon Act with no
explanation cited.139
Some Questions Remain
The 1992-1993 Davis-Bacon suspension had been urged upon President Bush
as a matter of policy through the spring of 1992 long before the hurricanes struck.
His early reaction, reportedly, had been mixed.140 Whether his ultimate decision to
suspend the act was primarily a response to storm-related developments or a
reflection of broader policy considerations may now be a moot point. Other issues,
however, remain.
!What constitutes a “national emergency” for purposes of suspension
of the Davis-Bacon Act? What was the intent of Congress in this
!Does the concept of “national emergency” under Davis-Bacon allow
the President to suspend the act for regional or local emergencies
that may have only a tenuous impact upon the Nation at large: for
example, an earthquake or a flood?
136 AFL-CIO News, October 26, 1992, p. 1.
137 See S. 138 of the 103rd Congress. Senator Daniel Akaka (D-Hawaii) was a co-sponsor
of the measure.
138 Congressional Record, March 22, 1993, p. S3323. By a vote of 69 to 29, the Senate
voted to table the Craig amendment. See Congressional Record, March 24, 1993, pp.
139 Federal Register, March 10, 1993, p. 13189.
140 DLR, April 22, 1992, p. A10; April 23, 1992, p. A15; and June 5, 1992, p. A12.
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!Is the presidential suspension authority limited to the Davis-Bacon
Act, per se, or can it be extended to the various program statutes into
which Davis-Bacon provisions have been incorporated?141
!In areas where there are state and local prevailing wage
requirements, how might these be affected, if at all, by a presidential
suspension of Davis-Bacon?
!Were a President to suspend the act, how long could that suspension
remain in effect? Traditionally, such suspensions have been short,
but might they remain in effect so long as the suspending President
remained in office?
The crucial questions concerning suspension of Davis-Bacon may be legal and a
likely subject of litigation, especially so were the duration of a suspension to be
Davis-Bacon in the 1990s:
The Hatfield/Weldon Proposals
The Davis-Bacon Act would continue as a source of contention through the

1990s. Some aspects of the Reagan administrative changes remained unresolved,

notably the “helper” issue. Questions continued to be raised concerning the wage
rate determination process. Simultaneously, some urged that the statute be repealed
while others argued that it needed to be strengthened. And, with each Congress, the
issues were raised anew.
A Growing Momentum for Repeal of Davis-Bacon
With the election of 1994, the Republicans found themselves in control of both
houses of the Congress and Davis-Bacon became an immediate priority. As bills, pro
and con, were introduced in each house, the Engineering News-Record (ENR)
Senate and House Republicans are mapping simultaneous assaults on the Davis-
Bacon Act in hearings on two bills to repeal the 64-year-old federal prevailing-
wage law.
Battle lines were clearly drawn.... On one side, lawmakers and interest groups
are pushing for immediate repeal of the law. On the other side, labor and
industry groups who see the GOP’s strategic advantage are ready to discuss142
wholesale reform.
141 The issue could be complicated by the specific wording through which the Davis-Bacon
requirement has been added to the various program statutes. The mechanism is not always
consistent from one statute to another.
142 Engineering News-Record, February 27, 1995, p. 12. (Hereafter cited as ENR.) See also
editorial comment, “GOP aims at Davis-Bacon Act,” ENR, January 23, 1995, p. 7.
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Committees and subcommittees promptly scheduled hearings. Some forecast
decisive action: either significant modification of the statute or, possibly, something
On January 4, 1995, Senator Nancy Kassebaum (R-Kan.), the new chair of the
Senate Committee on Labor and Human Resources, introduced S. 141, an
uncomplicated proposal that would have repealed both of the Davis-Bacon and
Copeland Acts. Terming Davis-Bacon “outmoded,” Senator Kassebaum opined that
the public “is ill-served” by the act’s “wage rate and work rule restrictions.”143 A
hearing was conducted on February 15 and, on March 29, the bill was marked-up and
ordered to be reported.144
Meanwhile, companion legislation appeared in the House. On January 13, 1995,
Representative Cass Ballenger (R-N.C.) had introduced H.R. 500, a proposal not only
to repeal the Davis-Bacon and Copeland Acts per se but, also, to remove Davis-
Bacon requirements from all federal laws into which they had been incorporated.
Mr. Ballenger charged that Davis-Bacon “adds billions of dollars to Federal
construction costs” and that repeal of the act — permitting payment of lower wages
to construction workers — “would allow the Federal Government to fund more
construction projects with the money which is being spent, or to get the planned
construction done for less money.”145 The bill was referred to the Subcommittee on
Workforce Protections, of which Representative Ballenger was then chair. On March
2, the Subcommittee marked-up the bill and reported it to the full Committee on
Economic and Educational Opportunities.146
Momentum, it seemed, was building;147 but support for repeal was not as clear-
cut as it might at first have appeared. Nor were the lines, pro and con, drawn sharply
along partisan lines.
143 Congressional Record, January 4, 1995, pp. 407-408. The bill was initially cosponsored
by 14 Republican Senators.
144 U.S. Congress, Senate Committee on Labor and Human Resources, Repeal of the Davis-
Bacon Act, report to accompany S. 141, 104th Cong., 1st sess., S.Rept. 104-80 (Washington:
GPO, 1995), p. 11. The vote was 9 to 7 along party lines: Republicans for repeal;
Democrats, against.
145 Congressional Record, January 13, 1995, p. 1254.
146 At the Subcommittee hearing, Democratic Members objected to the mark-up as a
violation of committee rules. Overridden on a straight party-line vote, they walked out of
the hearing. Republican Members, with no Democratic Members present, then voted to
support H.R. 500 for repeal of the Davis-Bacon and Copeland Acts.
147 ENR opined: “At long last, it appears that the planets and stars are in an alignment that
at least offers hope that Congress will finally do in the Davis-Bacon Act.” See editorial
comment “Congress Should Kill the Davis-Bacon Act,” ENR, March 27, 1995, p. 114. In
an article by Hazel Bradford, “Unions Pulling Together,” ENR , April 17, 1995, p. 14, it was
observed that the movement for repeal had “cooled somewhat.”
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The Hatfield Proposal
On August 11, 1995, Senator Mark Hatfield (R-Ore.), chair of the
Appropriations Committee, with five other Republican Senators, introduced S. 1183,
the “Davis-Bacon Act Reform Amendments of 1995.”148 The Senator presented the
legislation as a compromise “that would be acceptable to the two major parties,
namely the building construction trade unions and the contractors’ coalition.” He
reviewed the history of the act and recalled that, as Governor of Oregon, he had
signed that state’s “little Davis-Bacon Act.” Affirming his support for the prevailing
wage concept, he stated:
... the Davis-Bacon Act, as it now stands, indeed deserves some of the criticism
that my distinguished associates level against it. Nevertheless, its purpose of
protecting the jobs of our Nation’s construction workers must persuade us to
reform, rather than repeal, the act.
Senator Hatfield explained that the bill was the product of “long and arduous”
discussions that had commenced in Oregon among representatives of industry and
labor and had continued in Washington during the summer of 1995. He proposed
three amendments to the existing statute.
First, the threshold at which the act becomes applicable to Federal projects
would be raised from $2,000 to $100,000. Second, the frequency with which
contractors are required to file wage and benefit schedules would be changed
from weekly to monthly. Third, trainees and apprentices would be excluded
from the prevailing wage standard if they are enrolled in a training program that
is registered with the Department of Labor.
The bill contained other provisions as well: tightening here, expanding or redefining
coverage there. Rather than repeal Davis-Bacon, he suggested, S. 1183 would
rewrite that measure “so that it can serve its original and laudable purpose.”149
Companion Legislation Offered in the House
As the summer of 1995 wore on, consideration of Davis-Bacon continued as
Congress took up budget and appropriations measures and a variety of program
148 Co-sponsors of S. 1183, with Senator Hatfield, were Senators Robert Packwood (R-Ore.),
Alfonse D’Amato (R-N.Y.), Ben Nighthorse Campbell (R-Colo.), Arlen Specter (R-Pa.), and
Rick Santorum (R-Pa.). Congressional Record, August 11, 1995, p. 23216. Others would
later add their names as co-sponsors.
149 Congressional Record, August 11, 1995, pp. 23217-23218. Senator Hatfield argued that
the alleged costs of the act had been “grossly overestimated” and suggested a series of flaws
in the standard CBO estimates of savings were repeal to take place. In ENR, September 11,

1995, p. 5, Rep. Jim Kolbe (R-Ariz.) suggested that he saw “well over a dozen [Senate]

Republicans getting behind this bill.” Further, ENR opined that the co-sponsors of the
Hatfield bill “would make a formidable force against repeal if they join prolabor
Democrats.” See ENR, September 4, 1995.
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statutes.150 Then, on October 12, Representative Curt Weldon (R-Pa.) introduced
H.R. 2472: companion legislation to the Hatfield bill. And, like the Hatfield bill, it
was initially proposed by Republican Members of the House. As Representative
Weldon explained, the bill has the “cosponsorship of 27 Republicans and the support
of organized labor across the country as well as many of the largest contracting
corporations in America.”151 He enumerated the advantages of Davis-Bacon both for
workers and for industry and asserted that repeal “would jeopardize the quality of life
of every construction worker in this country.”152
Although both bills (S. 1183 and H.R. 2472) died at the close of the 104th
Congress, the movement for repeal of the Davis-Bacon and Copeland Acts came to
an abrupt halt. It was reported that, when repeal had actually seemed possible, more
than “14,000 contractors have joined a coalition with construction unions seeking
reform rather than repeal.”153 Thereafter, through the end of the 20th century, though
repeal proposals continued to be introduced, they were not acted upon. Some limited
oversight hearings were conducted but Congress now concerned itself primarily with
the Davis-Bacon provisions of program statutes. Even with that more focused
agenda, no change was made in the prevailing wage statute.
Suspension of the Davis-Bacon Act, 2005
In late August 2005, Hurricane Katrina gathered strength in the Caribbean and
moved toward Florida and the Gulf Coast. The result was one of the greatest natural
disasters in the history of the United States. Gradually, the impact of the hurricane
was assessed. New Orleans had been especially hard hit. Diverse public and private
funding was made available to the areas affected, while thousands of people were
displaced from their homes, often to other states.
Reaction from President Bush
“Year after year,” observed Representative George Miller, the ranking Democrat
on the House Committee on Education and the Workforce, “Republicans have tried
to erase this law [the Davis-Bacon Act] ... But they do not have the votes in Congress
150 An effort had been made (later abandoned) to delete the Davis-Bacon requirement from
the “National Highway System Designation Act of 1995” (S. 440). It was proposed that
Davis-Bacon not apply to construction of the National Museum of the American Indian.
But, although approved (H.R. 1158), the measure, an appropriations bill, was vetoed. An
amendment authored by Representative Don Young (R-Alaska) added a Davis-Bacon
provision to the “Native American Housing Assistance and Self-Determination Act” (H.R.

2406, later substituted for S. 1260). And Davis-Bacon was considered in connection withth

budget and appropriations measures. The bills are of the 104 Congress. See ENR, April

10, 1995, p. 7 and May 22, 1995, p. 38.

151 Congressional Record, October 12, 1995, p. 27922. Other Members would later join as
co-sponsors. S. 1183 and H.R. 2472 were not identical, but very similar.
152 Congressional Record, October 12, 1995, p. 27922.
153 Engineering News-Record, February 27, 1995, p. 12.
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to do it.”154 The hurricane, however, may have made a difference. A Washington
Post headline on September 10, 2005, serves as an illustration: “In the Floods,
Parties’ Agendas Surface.”155
There had been large pockets of poverty in the New Orleans area. When the
announcement was made to vacate the city as the storm approached, the poor
apparently had few resources to rely on. Further, a lack of transportation may have
been critical and, perhaps equally important for these people, there was a lack of any
acceptable destination for them. After the storm passed, many poor remained amid
the ruins of a once thriving city: still without resources, but now without homes or
It was reported that on Wednesday, September 7, when Budget Director Joshua
Bolten briefed House Republicans on the President’s supplemental spending request,
“conservative lawmakers urged him to lift the wage rules” tied to Davis-Bacon.156
That same day, Representatives Tom Feeney (R-FL), Jeff Flake (R-AZ), and Marilyn
Musgrave (R-CO) organized a letter to President George W. Bush urging him to use
his presidential power to waive Davis-Bacon requirements.157 Signed by 35
Members of the House, the letter affirmed that compliance with the wage processes
of the Davis-Bacon Act could delay reconstruction and may “even raise total
construction costs by up to 38%.” The letter closed with a call for suspension of the
act: “Faced with the massive rebuilding challenges ahead, we respectfully urge you
to make a presidential proclamation to suspend Davis-Bacon until our country is once
again whole.”158
On September 8, 2005, President Bush suspended the Davis-Bacon Act as it
relates to specific segments of the country: i.e., to portions of Florida, Alabama,
Mississippi, and Louisiana.159 He specified both the act and “the provisions of all
other acts providing for the payment of wages, which provisions are dependent upon
determinations by the Secretary of Labor” under the Davis-Bacon rules. The
suspension would continue “until otherwise provided.”160
154 George Miller, Statement to the Press, September 8, 2005.
155 Jonathan Weisman and Amy Goldstein, “In the Floods, Parties’ Agendas Surface,”
Washington Post, September 10, 2005, A4. (Cited hereafter as Weisman and Goldstein, “In
the Floods.”)
156 Ibid.
157 Tom Feeney, Statement to the Press, September 7, 2005.
158 Rep. Jeff Flake, Statement to the Press, September 7, 2005. The statement includes the
letter to the President.
159 Concerning the procedure for suspension of such acts as the Davis-Bacon Act, see CRS
Report 98-505, National Emergency Powers, by Harold C. Relyea.
160 See White House press releases, September 8, 2005. See [
news/releases/2005/09/20050908-5.html]. Concerning the duration and/or termination of
suspension of an act such as the Davis-Bacon Act, see Relyea, National Emergency Powers,
op cit.
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Reaction to the Promulgation
Representative Charlie Norwood (R-GA) praised the President for his “quick
action to strip away unnecessary bureaucracy that may hamper our ability to
recover....” Davis-Bacon rules “are onerous and drive up the cost of any project to
which they are applied....” The nation, he stated, “can’t afford that kind of
inefficiency, red tape, and inflated costs when we have an entire region to rebuild,
largely at taxpayer expense.”161 The Daily Labor Report, quoting the President,
suggested that suspension “will result in greater assistance to these devastated
communities and will permit the employment of thousands of additional
individuals....”162 Or, as Representative Feeney reportedly stated: “Lots of people
in Louisiana are willing to go to work tomorrow, and the market will set the
Organized labor opined that the President’s order “would allow contractors to
pay substandard wages to construction workers in the affected areas.” John Sweeney,
the AFL-CIO president, opined that “employers are all to eager to exploit workers.
This is no time to make that easier.” Further, he asserted, “Taking advantage of a
national tragedy to get rid of a protection for workers that corporate backers of the
White House have long wanted to remove is nothing less than profiteering.” Edward
Sullivan, president of the Building and Constructions Trades Department, likened the
effect to “legalized looting.”164 The New York Times editorialized that “By any
standard of human decency, condemning many already poor and now bereft people
to sub-par wages — thus perpetuating their poverty — is unacceptable.”165
Legislation Introduced
Somewhat anticipating the President’s action, Representative Flake introduced
the “Cleanup and Reconstruction Enhancement Act (CARE Act)” on September 7,
2005. The Flake bill (H.R. 3684) would, whenever a “major disaster” has been
proclaimed under the Stafford Act governing such matters, automatically suspend the
Davis-Bacon Act for one year in the area of concern. A companion bill (S. 1817) was
subsequently introduced by Senator Jim DeMint (R-SC).
In the wake of the President’s action, several bills were introduced that would
have had the effect of overturning the President’s Davis-Bacon proclamation: H.R.
3763 (George Miller), H.R. 3834 (Frank Pallone, D-NJ), and S. 1739 (Edward
Kennedy, D-MA). Senator Barbara Boxer (D-CA) had introduced a two-pronged bill
(S. 1763): first, to give employment preference to workers who have been displaced
161 Rep. Charlie Norwood, Statement to the Press, September 8, 2005. Reps. Norwood and
Charles W. Boustany (R-LA) had written to the President, September 8, 2005, urging
suspension of the act.
162 Daily Labor Report, September 9, 2005, p. AA1.
163 Rep. Feeney is cited in Weisman and Goldstein, “In the Floods,” p. A4.
164 AFL-CIO: News for Working Families, September 10, 2005.
165 “A Shameful Proclamation,” editorial, New York Times, September 10, 2005, p. A26.
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by Hurricane Katrina; and second, to restore the impact of the Davis-Bacon Act in
the areas in which it had been suspended.
In addition to legislation dealing specifically with the Davis-Bacon Act, two
bills seemed to challenge Administration policy in that regard. Representative Miller
had introduced H.Res. 467, a bill “[r]equesting that the President transmit to the
House of Representatives information in this possession relating to contracts for
services or contraction related to Hurricane Katrina recovery that relate to wages and
benefits to be paid to workers.” The bill was referred to the Committee on Education
and the Workforce — where, ultimately, it was rejected by a vote of 25 to 20.166 A
separate measure, but of similar intent, had been introduced by Representative Steve
LaTourette (R-OH) and forwarded to the Committee on Transportation and
Infrastructure, chaired by Representative Young of Alaska.167
Davis-Bacon Reinstated
Gradually, conditions in the Gulf region became clearer and, in that context, a
movement was discerned for re-institution of the Davis-Bacon Act. In late
September, some 37 Republicans “signed on to a letter” to President Bush urging that
his proclamation be rescinded. In a more varied appeal, LaTourette stated, “When
you suspend Davis-Bacon, you also suspend the Copeland Anti-Kickback
prohibitions” of the act “so you have no more certified payrolls.” For those who are
“... worried about profiteering and other things, reinstating Davis-Bacon is a good
i d ea.”168
In late October, about 20 Republicans reportedly attended a meeting with White
House Chief of Staff Andrew Card at the office of Speaker Dennis Hastert. Card was
described as “more than receptive” to suggestions from those supportive of Davis-
Bacon and acknowledged that “they weren’t saving any money” through the
suspension.169 On October 25, Card called Representative LaTourette to invite him
to a meeting at the White House the following day — October 26. During the White
House meeting, Card was quoted as having said, according to LaTourette, that “there
appeared to be no savings garnered from suspending the Davis-Bacon Act.”170
On October 26, 2005, word began to surface that a change of policy was in the
works; and, by late afternoon, it seemed to have been confirmed. The Bush
Administration said, the Daily Labor Report reported, “... that it would reinstate on
November 8 Davis-Bacon Act prevailing wage requirements for reconstruction
projects in the hurricane-battered Gulf Coast region.” The article continued, quoting
166 See CRS Report RL31909, “House Resolutions of Inquiry,” by Louis Fisher.
167 Daily Labor Report, October 21, 2005, pp. A1 ff. Representative Young had been a
signatory to a pro-Davis-Bacon letter to the White House signed by 37 members of the
Republican Party.
168 Daily Labor Report, October 11, 2005, p. A2.
169 Daily Labor Report, October 21, 2005, pp. A1 ff.
170 Daily Labor Report, October 27, 2005, pp. AA1 ff.
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Labor Secretary Elaine Chao, that “[u]pon review of current conditions in the
declared areas, the administration will reinstate Davis-Bacon....”171
Issues Remaining for the New Century
Although the Davis-Bacon Act has been in place for 75 years, it remains a focusthst
of controversy. Through the closing years of the 20 century and into the 21
century, aspects of its administration remain in contention, but most areas of dispute
have roots in the enactments of 1931 and 1935.
When the initial Davis-Bacon legislation was under consideration, few appeared
to have entertained doubts that the Department of Labor would be able, rather easily,
to render wage rate determinations whenever the stakeholders, employers and
workers, were unable to agree with respect to what the locally prevailing wage
actually was. In practice, wage rate determination has remained a core issue with
respect to the Davis-Bacon Act — and remains as yet unresolved.
Similarly, classification of workers has remained an issue, emerging most
notably with proposals from the late 1970s to define treatment of “helpers” and to
assess an appropriate pattern of utilization of apprentices: two quite distinct groups
of workers. How workers are classified largely determines the rate at which they will
be paid. It may also reflect the attitude of the employing firm toward trade unions
and collective bargaining.
Other classification issues have arisen along with the definition of various
statutory provisions. What, for example, is meant by the “site of the work” for
Davis-Bacon purposes? How should “off-site” work, however defined, be treated?
Should truck drivers be Davis-Bacon covered? What ought to be the inter-
relationship between Davis-Bacon and the other procurement statutes: i.e., the
Walsh-Healey Act (setting labor standards for goods produced under federal
contracts) and the McNamara-O’Hara Act (setting labor standards for service
workers engaged under federal contracts)?
Annexation of the Davis-Bacon Act to a variety of program statutes (or
inclusion of a Davis-Bacon prevailing wage provision within such statutes) has added
further complexities and opportunities for dispute, pro and con. For example, does
a Davis-Bacon prevailing wage provision, added to a program statute, insure
protection for the workers involved? It may or it may not, depending upon the
phrasing of coverage and the relationship of the Davis-Bacon provision to the core
statute. When project funding is not directly provided to a grant/loan recipient
through appropriated funds but through a revolving fund or tax credits, etc., is
Davis-Bacon coverage modified or might the work be completely Davis-Bacon
Finally, through the 1990s and beyond, dispute remains about the economic
impact of the Davis-Bacon Act. Were Davis-Bacon repealed, how much might the
171 Daily Labor Report, October 27, 2005, p. AA1.
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federal agencies save — presumably by paying construction workers at lower rates?
Or, would elimination of Davis-Bacon have implications that could augment both
labor and total project costs? Does Davis-Bacon, with its associated regulations,
encourage a higher quality of workmanship, enhanced productivity, and a reduced
need for remedial work? Is there a connection between skill-transfers (apprenticeship
training) and Davis-Bacon? How are various groups of workers — women,
minorities, the unskilled, non-union workers — affected by the operation of the
After 75 years, as one reads through the hearings and floor discussions, it would
seem that the verdict is still out. Indeed, there would also seem to be very little solid
data upon which to base an assessment. Still (often, normally, on several occasions
during each session of the Congress), the issue of Davis-Bacon is raised anew amid
largely unqualified assertions of impact, pro and con, frequently without supporting
empirical evidence.
Concluding Comment
Since the 1930s, doubts have been raised about the need for the Davis-Bacon
Act and about the ability of the Department of Labor to implement the statute in a
reasonable manner. Through most of its history, however, such criticism seems to
have been muted. In the 1950s, as Davis-Bacon provisions were increasingly added
to program statutes, critics became more vocal, and increasingly so during the 1960s
through the 1980s. In the mid-1990s, there seemed to be some suggestion that critics
were making inroads on the act, and that repeal (or significant revision) was likely.
Then, suddenly, the climate changed, and through the past dozen years, debate has
cooled, though criticism has not entirely disappeared.
The act has been the focus of numerous hearings, scores of floor debates, and
has sparked an extended body of literature: studies, reports, analyses. But, the thrust
of congressional policy has been consistently toward expanded coverage and a
strengthening of the act.
Through the years, certain policy issues with respect to Davis-Bacon have
remained under discussion; and, to the extent that these questions continue to be
raised, they can be said to be unresolved. Indeed, some issues that were subjects of
debate in the 1930s continued to be debated, largely in the same terms, and to
provoke similar demands for administrative and/or legislative action. The growing
Davis-Bacon literature, pro and con, with refutations and counter-critiques, seems to
offer little that is new and appears to have left critical aspects of the act, its172
administration and its impact, unilluminated.
The Davis-Bacon Act has now become an institutional part of wage structure
and contracting practice within the construction industry. What the impact of repeal
or significant modification of the act might be is not entirely clear. Should any
172 Concerning these and other issues, see CRS Report 94-908, Davis-Bacon: The Act and
the Literature, by William G. Whittaker.
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change with respect to Davis-Bacon, whether pro or con, be extended to the related
Federal contract labor standards statutes: the Walsh-Healey Act and the McNamara-
O’Hara Act? This may be an area in which further study could be productive.
As the 21st century advances, several additional elements may be added to the
debate over Davis-Bacon or have an effect upon the character of that debate.
First. Some perceive a gradual weakening of the trade union movement, both
in actual membership and in political influence. This could translate into a
diminished public and congressional support for Davis-Bacon. And, if that
perception is accurate, it could result in some refocusing of labor’s legislative
At the same time, it should be recalled that the Davis-Bacon Act was intended
to promote stability within the construction industry as well as to protect labor
standards. Might elimination of Davis-Bacon adversely impact industry, producing
uncertainties with respect to wages as an element of the bidding process, alter
manpower utilization patterns, increase the risk of accidents in the workplace, or
render less effective skill development and transfer now commonly resolved through
apprenticeship programs where there is Davis-Bacon coverage?173
Second. There has been a gradual change, over time, in demographics.
Members of Congress, policy analysts, trade union leaders, with others, may no
longer fully share or appreciate the experience of the pre-World War II era.
With the retirement of the generations of the 1930s and 1940s (and attendant
loss of certain historical perspectives), there may no longer be a broad understanding
of the rationale for certain statutes — for protection of workers — that an older
generation may have taken for granted. Thus, if these labor standards statutes (such
as Davis-Bacon) are to survive, they may need to be justified anew, either through
education or through experience, some of it perhaps painful. But, on the other hand,
might it be that there may really be no longer a need for statutes such as the Davis-
Bacon Act? Or, might it be feasible to re-codify Davis-Bacon (with the several
related statutes) as a more general federal contract labor/management standards
Third. The reemergence of the federal deficit and budgetary constraints
resulting from security concerns may provoke a more critical review of assumptions
made during earlier periods of our national experience. As a result, where certain
statutes are criticized as imposing unnecessary costs or as presenting significant
enforcement and compliance problems, there may be increased willingness to alter
or to dispense with these older, perhaps less well understood, laws and to replace
them with programs and regulations judged to be more vital to a younger
173 Implications of repeal of the Davis-Bacon Act are suggested in Philips, Peter, Garth
Mangum, Norm Waitzman, and Anne Yeagle, Losing Ground: A Report on the Repeal of
Nine Little Davis-Bacon Acts (Salt Lake City: University of Utah Press, 1995).
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For all of these reasons, it may be useful to review the evolution of the Davis-
Bacon Act (and of other federal contract labor standards statutes as well) in order to
provide a rational foundation for their reassessment and for the development of future
directions of public policy.174
174 See also CRS Report RL32086, Federal Contract Labor Standards Statutes: An
Overview, September 22, 2003, by William G. Whittaker.
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