The Davis-Bacon Act: Issues and Legislation During the 110th Congress

The Davis-Bacon Act:
Issues and Legislation
th
During the 110 Congress
June 10, 2008
William G. Whittaker
Specialist in Labor Economics
Domestic Social Policy Division

The Davis-Bacon Act: Issues and Legislation
During the 110^th Congress
Summary
In 1931, following several years of intermittent hearings and, ultimately,
encouragement from the Hoover Administration, Congress adopted the Davis-Bacon
Act (now, 40 U.S.C. 3141-3148). The act, as amended, requires that workers
employed on public buildings and public works of the federal government and of the
District of Columbia must be paid at least the locally prevailing wage as determined
by the Secretary of Labor. Initially, the act applied to construction in excess of
$5,000; but, in 1935, the act was amended to render its terms applicable to projects
of $2,000 and above.
With the passage of time, the act was added to a series of individual public
works statutes — perhaps more than fifty, depending upon one’s count. As each of
these statutes came up for renewed funding, the Davis-Bacon provision became a
subject of dispute; and, by the 1960s, such disputes became both numerous and
contentious. Some have suggested that the act, having long outlived its Depression-
era origins, should be repealed. Others have argued that the act is as important today
as it was in the 1930s and that it should be applied more generally and routinely.
Through the past decades, application of Davis-Bacon to the Clean Water Act
(State Revolving Funds) has posed a serious problem and, with other concerns, has
impeded authorization of funding for covered projects. (See H.R. 720.) The battle
for (or against) Davis-Bacon has been fought out in other sectors as well: for
example, see Homeland Security (H.R. 2638) and the energy independence bill (H.R.
6). Even the Farm, Nutrition, and Bioenergy Act of 2007 (H.R. 2419) contains a
Davis-Bacon provision. (As part of that program, a series of biorefineries and biofuel
production facilities would be constructed; and, if so, construction workers on such
plants can expect to be paid at least locally prevailing wages.) See also the HOPE
VI housing renovation and restoration act (H.R. 3524), the Indian health care
amendments of 2007 (H.R. 1328, S. 1200), and construction of educational facilities
(H.R. 2470, H.R. 3021, H.R. 5401, S. 912, and others).
Other construction-related proposals currently before Congress contain Davis-
Bacon requirements. See, for example, H.R. 3074 (the Department of Transportation
and related agencies appropriations bill) and H.R. 3161 (the Agriculture and Rural
Development appropriations bill).
This report, essentially a tracking document, will be updated as developments
warrant. It reviews the origins and evolution of Davis-Bacon, suggests what is (and
may not be) known about the act’s impact, and reviews current legislative initiatives
that involve the act. Though it may not review all Davis-Bacon proposals of the 110^th
Congress, it does provide some measure of the give-and-take on the legislative front.

Contents
Introducing the Davis-Bacon Act......................................1
The Structure and Context of Davis-Bacon..........................2
The Purpose of the Act.........................................3
A Continuing Process..........................................4
The Debate Over Davis-Bacon.......................................5
Perspectives of Davis-Bacon Critics...............................5
Perspectives of Davis-Bacon Supporters............................6
What Do We Really Know About the Impact of the Davis-Bacon Act?........7
Recent Congressional Concern with the Davis-Bacon Act..................8
The Davis-Bacon Act and the CWA/SRFs..............................8
A New Bill Introduced (H.R. 720).................................9
Subcommittee and Committee Action..........................9
The Bill Considered in the House............................10
Consideration by the Senate ....................................12
Davis-Bacon and Energy Independence (H.R. 6)........................12
Parliamentary Maneuvering.....................................12
Davis-Bacon Provisions of the New Energy Bill.....................14
Davis-Bacon and the Farm Bill (H.R. 2419) ...........................15
Consideration by the House.....................................15
Consideration in the Senate.....................................17
Early Dispute over Process.................................17
Passage in the Senate......................................18
Further Maneuvering ..........................................18
Davis-Bacon and Homeland Security (H.R. 2638).......................20
Action in the House...........................................20
Action by the Senate..........................................22
Consolidated Appropriations Bill................................22
HOPE VI Reauthorization Act of 2007 (H.R. 3524)......................22
The HOPE Housing Act........................................23
The King Davis-Bacon Amendment..............................23
Consideration by the Senate.....................................25
Indian Health Care Amendments of 2007..............................25
The Pallone Bill (H.R. 1328)....................................25
The Dorgan Bill (S. 1200)......................................26
Provisions of the Dorgan Bill...............................26
Some Policy Implications..................................27
Back to the House............................................28

Improving Public School Facilities...................................29
General Discussion of Davis-Bacon..............................29
House Considers a Construction Bill: H.R. 3021....................30
Views of the Majority.....................................31
Views of the Minority.....................................31
Floor Consideration in the House................................32
Appropriations: Departments of Transportation and HUD (H.R. 3074) ......33
Proposal by Representative King.................................33
The Issue Debated............................................34
Combined in the Appropriations Process..........................35
Appropriations: Agriculture and Rural Development (H.R. 3161)...........35
Proposal by Representative Kingston.............................35
The Issue Debated............................................35
“Helper” Issue and Manpower Utilization..............................37
DOL Efforts to Change the Helper Requirement.....................37
Congress Takes Another Look...................................39
The Late Clinton Administration.............................39
The George W. Bush Administration.........................39

The Davis-Bacon Act: Issues and
th
Legislation During the 110 Congress
The Davis-Bacon Act of 1931 (as amended) requires that not less than the
locally prevailing wage be paid to workers employed under federal construction
contracts.¹ It also affects manpower utilization on such projects: for example, the
employment of helpers or unskilled and semi-skilled general utility workers. With
respect to the implementation of the act, Congress has assigned wide administrative
responsibility to the Secretary of Labor, but legislative oversight has been more or
less continuous at least since the 1950s.
Through the years, Davis-Bacon provisions have been written into numerous
program statutes. Application of the act to these (and to new) legislative programs
has continued to spark congressional interest. Some urge that the prevailing wage
statute is as important now as in the 1930s. Others contend that the requirement
should be set aside in order to stretch construction dollars by permitting payment of
less than prevailing rates. Frequently, Davis-Bacon (or the prevailing rate question)
has been contested within the context of program statutes in which wages were not
the central focus of debate but that were, nonetheless, of considerable importance to
employers, to workers, and to the communities in which they operate.
This report is essentially a tracking document. It traces the most recent interests
by Congress in the Davis-Bacon Act and suggests the concerns that have been and
are being voiced with respect to the act.
Introducing the Davis-Bacon Act
In 1931, at the urging of the Hoover Administration, Congress enacted
prevailing wage legislation for federal contract construction. The legislation was
cosponsored by Representative Robert Bacon and Senator James Davis: thus, the²
Davis-Bacon Act. The act was significantly amended in 1935 and its scope
broadened. In 1964, the definition of prevailing wage was expanded to include a

¹ 40 U.S.C. 3141-3148. Davis-Bacon provides a wage floor. To recruit and retain a skilled
workforce, contractors may be forced, by the market, to pay wages in excess of those found,
under Davis-Bacon, to be prevailing in the locality, for construction work.
² Robert Bacon had engaged in banking in New York prior to his election to the House of
Representatives in 1922. James Davis had served as Secretary of Labor in the cabinets of
Presidents Harding, Coolidge, and Hoover prior to his election to the Senate in 1930.

fringe benefits component. Otherwise, the act remains essentially in its 1935 form.³
Although there have been intermittent efforts to repeal the Davis-Bacon Act and the
related Copeland “anti-kickback” Act (1934),⁴ such initiatives have been consistently
rejected by Congress.
The Structure and Context of Davis-Bacon
The Davis-Bacon Act requires that federal (and some federally assisted)
construction contracts specify the minimum wage rates to be paid to the various
categories of laborers working under those contracts. Minimum wages are defined
as those rates of pay found 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 locality is usually (but not necessarily always) a county or
metropolitan area. Normally, construction work is divided into four categories:
residential, non-residential buildings, highway, and heavy construction.
The act does not require that collectively bargained (union) wages be paid unless
such wages happen to be prevailing in the locality where the work takes place.
Further, the prevailing rate for Davis-Bacon purposes represents a floor. It is not
necessarily the rate that a construction firm may have to pay in order to recruit and
to retain qualified workers.⁵
Typically, the Department of Labor (DOL) conducts two types of wage rate
determinations: general area determinations and, where necessary, specific project
determinations. DOL sometimes collects data through a direct survey process. More
often, it works from data provided by contractors, trade unions and other interested
parties. It may use both methods, jointly.
The act requires that the “advertised specifications for every [construction]
contract in excess of $2,000, to which the United States or the District of Columbia
is a party,” must specify the wage that the Secretary of Labor determines to be
prevailing in the locality for the “various classes of laborers and mechanics”
employed on the covered work. Speaking generally, DOL does not recognize
unskilled or semi-skilled “helpers” as a class of workers for wage rate determination
purposes. Rather, it evaluates workers by craft. Thus, employers may be
discouraged from employing helpers on Davis-Bacon projects, turning to more
skilled crafts-persons instead. DOL does, however, recognize apprentices and

³ For a quick historical overview of the act, see CRS Report 94-408, The Davis-Bacon Act:
Institutional Evolution and Public Policy, by William G. Whittaker.
⁴ Some employers, it was alleged, had paid the prevailing wage to their workers but then
demanded rebates or kickbacks. To end this practice, Congress passed the Copeland “anti-
kickback” Act in 1934 (P.L. 73-324). Reports filed under the Copeland Act put employers
‘on record.’ Though not a part of the Davis-Bacon Act, it operates in tandem with that
statute and, in policy terms, is usually a part of the Davis-Bacon debate.
⁵ There does not appear to be any systematic analysis of the gap, if any, between the floor
provided by the Davis-Bacon Act and the wages actually paid to construction workers on
covered projects.

encourages the employment on Davis-Bacon projects of persons enrolled in bona fide
apprenticeship programs.⁶
Supplemented by other statutes, work under Davis-Bacon is covered by work
hours and health and safety standards legislation, though the latter are not part of the
Davis-Bacon Act, per se. The related 1934 Copeland “anti-kickback” Act requires
weekly reporting of wages actually paid, with an affirmation from employers that any
deductions from wages due to employees were proper.
Davis-Bacon applies to direct federal construction, alteration, or repair of public
buildings and public works, including painting and decorating, where the contract is
in excess of $2,000. Further, Davis-Bacon provisions have been written into
numerous federal program statutes. Some states have enacted “little Davis-Bacon”
acts. These state statutes, however, normally differ from each other and from the
federal Davis-Bacon Act.⁷
The Purpose of the Act
In the 1920s, the federal government undertook a major program of public
works. As the nation moved into a depression after 1929, this program had important
implications for the areas where the work was to be performed. Given the depth of
the economic downturn and the scope of unemployment, any opportunity for work
was attractive both to workers and to struggling firms.
Federal construction contracts were normally awarded to the lowest responsible
bidder — but treatment of workers and payment of fair wages were not taken into
account. As a result, certain itinerant contractors, employing workers imported from
low-wage parts of the country, were able (or believed to be able) to underbid local
contractors. In this way, it was alleged, fly-by-night operators would win contracts,
based upon the payment of sub-standard wages (to workers desperate for employment

⁶ With the Fitzgerald Act in 1937 (29 U.S.C. 50 ff.), the federal government assumed an
oversight role with respect to apprentice training. Workers enrolled in programs recognized
by the DOL (or by cooperating state programs) receive specified training which, when
complete, results in a credential certifying the competence of the graduate (journeyman).
The credential is portable (i.e., recognized throughout the country). Such programs are
usually funded jointly by the employer and the apprentice (through a temporarily reduced
wage) and, often, by a contribution from the trade union in the craft.
⁷ The Davis-Bacon Act applies only to federal contract construction. Other enactments apply
to government purchases of goods and services. The Walsh-Healey Public Contracts Act
(1936) deals with labor standards with respect to goods produced under contract for the
federal government. The McNamara-O’Hara Act (1965), popularly known as the Service
Contract Act, deals with labor standards under federal service contracts. (These statutes do
not apply to fully private sector work.) In addition, there is the more general Contract Work
Hours and Safety Standards Act (1969); the latter is an amalgam of earlier federal work
hours and safety enactments. For a extended (but critical) account of these statutes and their
administration, see Armand J. Thieblot, Jr., Prevailing Wage Legislation: The Davis-Bacon
Act, State “Little Davis-Bacon” Acts, the Walsh-Healey Act, and the Service Contract Act
(Philadelphia, University of Pennsylvania Press, 1986). See also CRS Report RL32086,
Federal Contract Labor Standards Statutes: An Overview, by William G. Whittaker.

but sometimes lacking appropriate skills), and then produce an inferior quality of
construction. Thus, the positive rehabilitative economic impact of public building
and public works projects for the various localities was reduced, to the disadvantage
both of local contractors and local workers alike.⁸ The original Davis-Bacon Act, it
would seem, was as much a protection for fair contractors as for workers. It was
viewed as a model for private sector employers with respect to labor standards.
In drafting the Davis-Bacon Act, Congress was not searching for the cheapest
available labor for federal construction work. Rather, it prescribed payment of not
less than the locally prevailing wage in order, in part, to protect fair local contractors
and workers, engaged in local markets, from contractors and low-wage crews from
outside the area of construction work. However, supporters of Davis-Bacon have
contended that there is no essential conflict between the purposes of the statute and
securing a bargain for the public agency consumer (the taxpayer).⁹
A Continuing Process
In 1931, the Davis-Bacon legislation was regarded as an emergency measure
that sparked little controversy. From the hearings and debates of that period, it seems
clear that Congress anticipated none of the administrative problems that would ensue.
But, almost immediately, restructuring of the act commenced.
In early 1932, President Hoover moved to strengthen administration of the
statute through Executive Order No. 5778.¹⁰ Although Congress proceeded with
oversight and, ultimately, adopted reforms, its reform initiative was vetoed by the
President.¹¹ The Copeland “anti-kickback” Act (1934) helped ensure that rates would
be paid without improper deductions. In 1935, Congress adopted major changes to
the statute: (a) reducing the coverage threshold from contracts of at least $5,000 to
those in excess of $2,000; (b) extending coverage from public buildings to include
“construction, alteration, and/or repair, including painting and decorating, of public
buildings or public works”; and (c) requiring that the locally prevailing wage rates

⁸ During the late 1920s and early 1930s, the contracting community appears to have been
concerned with quality controls, ethical standards, and fair competition. See G. F.
Schlesinger, “Responsibility as a Pre-Requisite,” The Constructor, August 1928, pp. 24-25,

55-61; “‘Irresponsible Contractor’ Defined,” The Constructor, August 1928, pp. 35-36, 51;

A. E. Horst, “Accomplishments in Cooperation: Elimination of Irresponsibility Marks
Progress of the Industry,” The Constructor, November 1929. pp. 28-30, 56; “When Low
Bids Are Too Expensive,” The Constructor, February 1930, pp. 40-41, and 58; and E. A. St.
John, “Cooperation Eliminating Irresponsibility,” The Constructor, April 1930, pp. 35-36.
⁹ Concerning early Davis-Bacon philosophy, see David B. Johnson, “Prevailing Wage
Legislation in the State,” Monthly Labor Review, August 1961, pp. 839-845. The prevailing
wage requirement does not preclude award of contracts to outside contractors. Rather, the
philosophy of the act is to ensure that local labor standards will not be undercut.
¹⁰ Proclamations and Executive Orders: Herbert Hoover, March 4, 1929 to March 4, 1933
(Washington: GPO, 1974), vol. II, pp. 1066-1067.
¹¹ These reform initiatives are discussed in U.S. Congress, Senate, Relationship Between
Employees and Contractors on Public Works, Report Pursuant to S.Res. 228, H.Rept. 74-^th^st

332, Part 2, 74 Cong., 1 sess., (Washington: GPO), May 13, 1935, pp. 7-9.

be predetermined — prior to solicitation of bids — and that they be written into bid
solicitations.¹²
The Debate Over Davis-Bacon
By the 1950s, Congress had begun to add Davis-Bacon provisions to various
program statutes in which federal funding made the work possible. But, such
extensions of coverage (which would involve new and different types of contract
work and a new body of contractors) seem to have sparked increased uneasiness with
the act.
Through the years, arguments for and against Davis-Bacon have become largely
fixed, as have counter arguments of defenders and critics. In the evolving debate,
few contentions about the act have gone (or are likely to go) unchallenged. On both
sides, there are assertions that advocates tend to accept without question.
Current policy debate has focused upon whether to attempt to strengthen or
diminish the Davis-Bacon impact or to repeal the statute outright. Outlined below
are some of the arguments advanced by critics and by defenders of Davis-Bacon
expressed in summary as each side in the ongoing debate might state them. In policy
terms, the division of opinion seems to be in some measure philosophical, reflecting
basic attitudes toward labor-management relations rather than a division along
partisan political lines.
Perspectives of Davis-Bacon Critics
Some critics of Davis-Bacon argue that the act is inflationary (that it
unnecessarily raises the cost of construction), that it is difficult to administer, and that
it hampers competition — especially (advocates assert) with respect to small
businesses that may be unfamiliar with federal contracting procedures and lack the
staff to deal with the requirements such procedures impose. They contend that the
act impedes efficient manpower utilization, limiting the use of ‘helpers’ or general
utility workers. Some argue, were Davis-Bacon restrictions absent, that contractors
would be able to restructure the work to be performed, dividing tasks into less
complex assignments, in order to make practical the employment of workers who
may be less skilled and who are also less expensive to employ. The result, they
argue, would be increased efficiency. And, they suggest, this would likely open more
employment opportunities to low-skilled workers, allowing them to gain work
experience and on-the-job training, while at the same time reducing the costs of
public construction.

¹² Reduction of the coverage threshold appears to have been motivated by at least two
considerations. First. Contracts for painting and decorating were often too small to come
under the $5,000 figure. Second. It appears that some contractors artfully divided work into
small parcels in order to avoid Davis-Bacon coverage. Reducing the threshold to $2,000
was viewed as a means through which to extend coverage.

Besides, critics note, the Davis-Bacon Act (1931, 1935) was adopted before
there were federal minimum wage standards. With the general minimum wage floor
established under the Fair Labor Standards Act (1938), they suggest, the Davis-Bacon
Act is no longer needed: that is, a ‘super minimum wage’ for federal construction
work is both unnecessary and inequitable. They assert that labor costs for federal
construction could be reduced (with savings for the taxpayer) if actual local market
wages were paid rather than administratively determined locally prevailing wages
which, some argue, may often be union rates.¹³ In addition, they urge simplification
of the Copeland Act’s reporting requirements.
Perspectives of Davis-Bacon Supporters
Supporters of Davis-Bacon often contend that the act prevents cutthroat
competition from fly-by-night firms that would undercut local wages and working
conditions and compete unfairly with local contractors. They suggest that the act
helps stabilize the local construction industry — an advantage to workers and
employers alike. The act, they suggest, may tend to assure the contracting agency of
higher quality work since employers, required to pay at least the locally prevailing
wage, are likely to hire more competent and productive workers, resulting in better
workmanship, less waste, reduced need for supervision, and fewer mistakes requiring
corrective action.¹⁴ This may lead to fewer cost overruns and more timely
completion of public construction and, in the long-term, lower rehabilitation and
repair needs. Thus, some argue, the Davis-Bacon Act could actually save the
taxpayer money on public construction.
Supporters of the act also argue that Davis-Bacon deters contractors from
fragmenting construction tasks in order to utilize low-wage (and low-skill) “helpers”
or pick-up crews. Some argue that without Davis-Bacon (and in the absence of a
collective bargaining agreement), contractors would probably be unlikely to provide
training beyond the necessary and narrow requirements of the job — and would not
likely enter into a formal program such as those monitored by DOL’s Bureau of
Apprenticeship and Training. Reducing or eliminating apprenticeship programs in
the construction industry might work to the disadvantage of those younger workers
who are creating careers for themselves in the building trades. In addition, some
assert that if “helpers” are substituted for skilled craft workers, it would likely be
those same apprentices, ones young and lacking experience in the crafts, who could
expect to be laid off or forced into lower-wage jobs that did not train them in all-
around skills needed by journeymen in their chosen fields.¹⁵

¹³ The Davis-Bacon prevailing rate is a floor, not necessarily the rate that employers will
actually have to pay. DOL suggests that union rates are used only where they are found to
be prevailing in a locality.
¹⁴ Conversely, some argue that, in the fully private sector, there is a significant amount of
quality construction work that is performed without Davis-Bacon protection.
¹⁵ Both ‘critics’ and ‘supporters’ of Davis-Bacon have tended to make arguments that
involve women and minorities — or ‘small business’ people — perhaps less because they
would be directly impacted than that they have become sympathetic participants.

What Do We Really Know About the Impact
of the Davis-Bacon Act?
Perhaps the most frequently asked question concerning the Davis-Bacon Act is:
How much money could be saved if Davis-Bacon were repealed or modified to
narrow its scope? The short answer is probably: no one really knows.
Conversely, does Davis-Bacon save money for the federal government in its
purchases of construction; for example, employment of more highly skilled workers
on Davis-Bacon projects? Here again, a response may also be uncertain.
Davis-Bacon literature is extensive and diverse, much of it in the form of public
materials (i.e., agency reports and analyses). Journalists have taken a continuing
interest in the act, resulting in a substantial popular literature. Serious academic
studies may be fewer. It is extremely difficult for an independent scholar to review
the administration of the act to assess its impact. First. There is the scope of the
task: vast numbers of projects scattered throughout the United States, administered
by different agencies and involving hundreds of contractors and subcontractors,
working under dissimilar circumstances and in diverse labor markets. Second. There
is the problem of the availability of documentation. Since the contractors involved
are of the private sector, how much useful information has been preserved? Third.
Access presents a problem. Assuming that the data and documents have been
preserved and could be made available, securing such documentation (and access to
administrative personnel) may be problematic, both from the private sector
(contractors, workers and unions) and from the various public agencies.
If one assumes that documentation exists, access is allowed, that all of the
parties are cooperative, and that the means, financial and other, are available for such
an undertaking, there remains a fourth and, perhaps, most difficult complication. The
analyst would be comparing something that did happen with something that in fact,
for whatever reasons, did not happen. Payroll records, labor-management
relationships, availability of skilled workers, quality of supervision, internal agency
memoranda, etc., all relate to an actual project and not to what might have happened
under other circumstances.
In the absence of a Davis-Bacon requirement, would the contract have gone to
the same contractor? If so (or if not), would the contract have been managed in the
same way? Did the act have any impact upon the wages actually paid or upon
workforce utilization? Without Davis-Bacon, would different workers have been
employed? The work of a governmental researcher may be further complicated by
political or public policy considerations.¹⁶
For all of these reasons, there appear to be significant gaps in our knowledge of
the act and of its administration despite oversight by Congress, extensive study by
public and private agencies, and the work of individual scholars. Further, few studies

¹⁶ See, also, CRS Report 94-908, Davis-Bacon: The Act and the Literature, by William G.
Whittaker.

of the act, whether public or private, have escaped criticism on grounds of flawed
methodology or inadequate sample size. Thus, precise estimates of impacts ought
to be viewed with considerable caution.¹⁷
Recent Congressional Concern
with the Davis-Bacon Act
During each Congress, some measures have normally been introduced that
would strengthen, diminish, or repeal the Davis-Bacon Act. Generally, the issues
have been contentious and, in some cases, have been a threat to enactment of the
underlying measures.
There follows a series of Davis-Bacon related issues upon which some
legislative action has been taken during the 110^th Congress. In some cases, the
presence of a Davis-Bacon proposal does not appear to have been an impediment to
enactment; in other cases, Davis-Bacon seems to have been determinant.
The Davis-Bacon Act and the CWA/SRFs
Through more than a decade, authorization for funding of the Clean Water Act
State Revolving Fund (CWA/SRF) has been a matter of contention with the
authorizing committees of both the House and the Senate. Each time a bill has been
brought up for consideration, various issues were raised — among them, coverage
under the Davis-Bacon Act — and, ultimately, the bills died.¹⁸
In the 110^th Congress, consideration of the CWA/SRF issue commenced in the
House very early in 2007, with Davis-Bacon an essential ingredient in the

¹⁷ A distinction needs to be made between labor costs and project costs. Higher labor costs
could result in lower project costs if more efficient and more skilled workers are employed.
But, as a practical matter, to what extent are actual project costs governed by the
requirements of the Davis-Bacon Act? Might they reflect the manner of federal agency
oversight and monitoring of the progress of the work? Is federal construction work
supervised as closely as that of the private sector? What might be the impact of other
federal requirements: style of construction/architecture, especially for ceremonial buildings?
Is cost impacted by various “set asides” for sheltered contractors — small and minority
business and the like? For an example of the problems private research involves, see Martha
Norby Fraundorf, with John P. Farrell, and Robert Mason, Effect of the Davis-Bacon Act on
Construction Costs in Non-metropolitan Areas of the United States (Corvallis: Oregon State
University), January 1982.
¹⁸ For general background on this issue, see CRS Report RL31491, Davis-Bacon Act
Coverage and the State Revolving Fund Program under the Clean Water Act, by William
G. Whittaker, and CRS Report RL33800, Water Quality Issues in the 110 Congress:
Oversight and Implementation, by Claudia Copeland.

proceedings.¹⁹ Although the House has passed the CWA/SRF, it has not been acted
upon in the Senate.
A New Bill Introduced (H.R. 720)
On January 30, Representative James Oberstar introduced H.R. 720, the Water
Quality Financing Act of 2007.²⁰ The bill was referred to the Subcommittee on
Water Resources and Environment, marked-up and promptly forwarded to the full
Committee on Transportation and Infrastructure.
Subcommittee and Committee Action. In the subcommittee mark up
(January 31, 2007), Davis-Bacon once more became an issue. Representative Richard
Baker urged that the Davis-Bacon language be stricken. On a voice vote, the Baker²¹
amendment was rejected and the Davis-Bacon provision was retained.
On February 7, the House Committee on Transportation and Infrastructure took
up the measure. Here again, there was controversy over the Davis-Bacon issue but
it was overcome. The bill was approved in the full committee by a vote of 55 yeas
to 13 nays. With the Davis-Bacon provision intact, the bill was ordered reported.²²
As reported (H.Rept. 110-30), H.R. 720 has two provisions that deal with Davis-
Bacon. Section 513, which applies the act broadly to treatment construction, was
retained. It requires that “all laborers and mechanics employed by contractors or
subcontractors on treatment works for which grants are made under this Act shall be
paid wages at rates not less than those prevailing for the same type of work on similar
construction in the immediate locality.”
That authority (Section 513) had long been in place; but, now, a new provision
was added: Section 602(b)(17). The committee report explained:
New Section 602(b)(17) requires the application of the Davis-Bacon
requirements for the construction of treatment works carried out in whole or in
part with assistance made available from state revolving loan funds under Title
VI, funds from section 205(m) of the Act, or both. This amendment authorizes
the application of the prevailing wage requirements to construction projects
carried out with any financial assistance from the state revolving fund, whether
the source of assistance originates from Federal capitalization grant funds, state
matching funds, repayments to the fund, interest payments, or other sources of
income to the state revolving fund, and whether the character of the assistance
is through loans, loan guarantees, or other types of assistance authorized by
section 603(d).

¹⁹ Bureau of National Affairs, Daily Labor Report, January 10, 2007, p. A8.
²⁰ Congressional Record, January 30, 2007, p. E220.
²¹ Terry Kivlan, “Subpanel, OKs $20 Billion Waste Water Construction,” see
[http:nationaljournal.com/members/markups/2007/01/mr_20070131_3,htm], February 28,

2007. See also Bureau of National Affairs, Daily Labor Report, February 2, 2007, p. A3.

²² Bureau of National Affairs, Daily Labor Report, February 9, 2007, p. A2.

The report continued. “By establishing the Davis-Bacon prevailing wage requirement
for the construction of treatment works, the Committee continues its long-standing
practice of ensuring the application of Davis-Bacon where Federal funds are provided
for construction....” It added: “For the Clean Water SRFs, the most significant source
of revenue in the state revolving funds is the Federal capitalization grant. As
Congress has done in 63 separate instances for Federally-funded construction, the
Davis-Bacon Act should apply to the reauthorization of the Clean Water SRFs.”
The committee went on to discuss the different reasons for support of the Davis-
Bacon Act: to “attract more experienced and better trained workers,” workers who
“are often more productive than workers with less training and experience,” that
Davis-Bacon work results often “in the completion of construction projects ahead of
schedule,” “reducing the overall cost of the project,” and “offsetting any increased
costs due to higher hourly wage rates.”²³
Conversely, Representative John Mica, together with several others, expressed
opposition to the Davis-Bacon provisions. Representative Mica stated that the bill
“represents an important step forward for clean water” but “it also takes a significant
step backwards by mandating and expanding upon the past application of Davis-
Bacon Act prevailing wage requirements in the SRF program.” Davis-Bacon, he
stated, would add “to the cost of public construction” and have a disproportionate
impact on “small, rural, and disadvantaged communities, which can least afford to
pay the higher cost of projects.” He stated that the act was “discriminatory” in that
“[f]ew small and minority-owned firms can afford to pay the higher wages that the
Davis-Bacon Act requires. As a result,” he observed, “they are rarely awarded
Davis-Bacon contracts, and many of them stop applying for those contracts.” He
concluded: “There is no precedent here for applying the Davis-Bacon Act to state
funds....”²⁴
The Bill Considered in the House. On March 9, the Water Quality
Financing Act of 2007 was called up for debate in the House. Davis-Bacon was a
major part of the debate that followed.
In a discussion of the rule (H.Res. 229), Representative Pete Sessions raised the
issue of Davis-Bacon coverage. He stated: “...the Democrat leadership is bringing
legislation to the House floor that benefits big labor bosses at someone else’s
expense.” Sessions continued: “...in order to help big labor bosses pad their
dwindling ranks, they would apply these same provisions [Davis-Bacon regulations]
to all non-Federal funds, such as loan repayments, State bond revenues, interest and
State-matching funds.” Sessions objected to “this Depression Era wage subsidy law”
and “its associated inflation” which means that local budgets cannot build “schools,
hospitals, prisons, roads and other vital projects.” He continued:

²³ U.S. Congress. House. Committee on Transportation and Infrastructure. H.Rept. 110-030,
Water Quality Financing Act of 2007: Report to Accompany H.R. 720. p. 24-25. (Cited
hereafter as H.Rept. No. 110-030.)
²⁴ H.Rept. No. 110-030, 2007, pp. 56-57.

If you support fiscal responsibility, small business, States’ rights, rural
communities, women- and minority-owned businesses, and the environment, you
will join with me in opposing this rule.
If, however, instead, you support environmental harm, market distortion,
wasteful Federal spending, and stacking the deck in favor of labor bosses, I²⁵
wholeheartedly encourage you to vote for this legislation.
Representative Kathy Castor responded that some were “...unable to criticize the
heart of this legislation” (i.e., authorization for “an important part of the Clean Water
Act”). Thus, she suggested that the Member from Texas “instead reverts to attacking
a portion of this legislation that is vital to workers across America, the Davis-Bacon
provisions.” She affirmed that
...it is our policy, in fact, it is Congress’s long-standing continuing tradition of
applying prevailing wage requirements to federally funded construction projects.
Studies have shown that by attracting more experienced, better-trained workers,
that wage requirements lead to higher productivity and they reduce overall costs,
which offset any higher wages.
Castor argued that Davis-Bacon “protects communities by ensuring that wage
determination” is based “solely on the local workforce costs” — the locally
prevailing wage rate. Further, she argued, with Davis-Bacon in place, oftentimes²⁶
“projects come in under budget and on time.” Throughout floor consideration of
H.R. 720, Members took strong positions either for or against the statute.²⁷
As discussion moved on through actual consideration of the measure,
Representatives Baker and Steve King proposed an amendment. Representative King
explained: “... really all this amendment does is it just stops the expansion of the
Davis-Bacon, and it says we are not going to move this Davis-Bacon into a revolving
fund.” Mr. Baker added with respect to Davis-Bacon: “It [Davis-Bacon] will make
the compliance of the rules for rural and lower income communities much more
difficult to achieve. Compliance with the Davis-Bacon provisions,” he stated, “is a²⁸
difficult and cumbersome task.” Speaking against the Baker/King amendment was
the chairman of the Committee on Transportation and Infrastructure, James Oberstar,
who noted the difference between a union wage and a prevailing wage. “This Davis-
Bacon provision is [a] prevailing [wage], not [a] union wage.” Oberstar added: “It²⁹
is the prevailing local wage.”
Although the Clean Water Act was under discussion, very little attention
actually focused upon that issue. Davis-Bacon had become the central topic. “The
only debate that we really have is,” Oberstar stated, “What shall be the wages paid

²⁵ Congressional Record, March 9, 2007, p. H2346.
²⁶ Congressional Record, March 9, 2007, pp. H2346-H2347.
²⁷ Congressional Record, March 9, 2007, pp. H2345-H2368.
²⁸ Congressional Record, March 9, 2007, p. H2369.
²⁹ Congressional Record, March 9, 2007, p. H2370.

to those who work on building these facilities?”³⁰ Mica (as would others) referred
to “an unprecedented expansion of Davis-Bacon requirements” and suggested that
the “President will veto the legislation if it contains the Davis-Bacon provisions.”³¹
Further, Representative Howard McKeon asserted that “...Davis-Bacon typically
increases the costs of Federal projects by anywhere from 5 to 38 percent.”³²
On a roll-call vote, the Baker/King amendment was defeated: 140 ayes to 280
nays.³³ Thus, the Davis-Bacon Act would apply to the SRFs under the House-passed
version of the Water Quality Financing Act of 2007 — whether on a first use basis
or, repeatedly, throughout the program. Following discussion of other issues, the bill
was adopted.
Consideration by the Senate
H.R. 720 was dispatched to the Senate. On March 12, 2007, it was referred to
the Committee on Environment and Public Works. Senate consideration remains
unclear.
Davis-Bacon and Energy Independence (H.R. 6)
On January 12, 2007, Representative Nick Rahall introduced H.R. 6, the
Creating Long-Term Energy Alternatives for the Nation Act of 2007.³⁴ A week later,
the bill was adopted by the House (264 ayes to 163 nays) and was subsequently
placed on the Senate legislative calendar.³⁵ Ultimately, the bill was adopted by each
body, becoming P.L. 110-140.
Parliamentary Maneuvering
As passed by the House, the measure was relatively brief (about 14 pages) and
dealt, largely, with technical aspects of oil and gas leases, taxation, and other non-
Davis-Bacon issues. However, with its passage by the Senate in mid-June 2007 (65
ayes to 27 nays), it had grown by several hundred pages and now contained a wide
variety of energy-related considerations. Among its provisions was coverage under

³⁰ Congressional Record, March 9, 2007, p. H2351.
³¹ Congressional Record, March 9, 2007, p. H2352.
³² Congressional Record, March 9, 2007, p. H2356. Later, ibid, p. H2369, Representative
King of Iowa suggested that “my average number is a 20 percent increase” in bids for
projects. Such percentages may depend upon the currency of Davis-Bacon rate data: i.e.,
how frequently they are updated by the Department of Labor. Again, a distinction may need
to be made between project costs and labor costs.
³³ Congressional Record, March 9, 2007, pp. H2373-H2374.
³⁴ Congressional Record, January 12, 2007, p. H513.
³⁵ Congressional Record, January 18, 2007, p. H729.

the Davis-Bacon Act of workers engaged in the construction of energy generating
facilities.³⁶
Several months passed before the House again called up the bill. The Rules
Committee reported the measure on December 5, and on December 6, the measure
was opened for debate.³⁷
Representative Howard P. McKeon rose in opposition to H.R. 6. Mr. McKeon,
among other things, objected to the bill’s “inclusion of bureaucratic mandates that
will kill American jobs and complicate job-training.” He cited a pro-Davis-Bacon
letter to the Administration suggesting that the bill will “not significantly expand the
application of Davis-Bacon prevailing wage requirements.” He continued:
Now, I don’t know how the majority defines the words ‘significantly expand,’
but by my count, this bill contains at least seven separate instances in which the
Davis-Bacon wage mandates are imposed.
Simply put, this bill furthers the majority’s aggressive application of Davis-
Bacon wage mandates. Davis Bacon wages can inflate project costs by as much
as 15 percent, costs that get passed on to taxpayers. They also force private
companies to do hundreds of millions of dollars of excessive administrative work
each year, squandering resources that would be better spent creating jobs and
spurring innovation.
And further, he stated, if the “job killing Davis-Bacon requirements weren’t bad³⁸
enough, this bill also complicates our job training system....”
Mr. McKeon’s protest may have been overshadowed by concerns about the
current price of oil and its impact for the economy. The bill, with Davis-Bacon³⁹
included, was approved by a vote of 235 ayes and 181 nays.
At this juncture, the bill moved back to the Senate where its fate was uncertain.
“Mr. President,” Senator Mitch McConnell observed, “there is a difference between
passing a bill and actually making laws. The bill before us is a prime example.”
Reviewing the House-passed measure, McConnell stated that “...it will not become⁴⁰
law.” Senator Harry Reid moved “to concur with the House on the message they

³⁶ H.R. 6, as adopted by the Senate, June 21, 2007 (635 ayes to 27 nays), pp. 93-94. See
also Congressional Record, June 11, 2007, p. S7469.
³⁷ Concerning the logistics of passage, see Dina Cappiello and Richard Rubin, “House
Pushes Broad Energy Plan,” CQ Today, December 5, 2007, pp. 1 and 15; and Cappiello, “As
Support for Ambitious Energy Bill Slips, House Postpones Floor Action,” CQ Today,
December 6, 2007, pp. 3 and 29.
³⁸ Congressional Record, December 6, H14425-H14426.
³⁹ Congressional Record, December 6, H14444.
⁴⁰ Congressional Record, December 7, 2007, p. S15007.

have sent us” and called for a cloture vote — which failed by 53 ayes to 42 nays.⁴¹
Speaker Nancy Pelosi was “disappointed” by the Senate’s action but reportedly
affirmed: “The House will work with the Senate on a bipartisan basis to pass a
strong energy bill and send it to the president’s desk for his signature.”⁴²
The result would be a reopening of the bill with further amendment and shifts
between the House and Senate. In the Senate, there were some concerns voiced
about an expansion (or a continuation of coverage) of Davis-Bacon requirements
where energy-related construction was involved: these may have been partially
resolved.⁴³ The bill was adopted by the Senate on December 13, 2007, by a vote of
86 yeas to 8 nays.⁴⁴ In the House, the final version of the measure was called up on
December 18, 2007, and approved by a vote of 314 ayes to 100 nays.⁴⁵ Davis-
Bacon, it appears, was not an issue in the final judgment on the bill.
Davis-Bacon Provisions of the New Energy Bill
Although Davis-Bacon was a relatively small element of the new energy act
(P.L. 110-140), it could have an important role in the administrative history of the
act: insuring that workers, engaged in federal construction, receive not less than the
locally prevailing rate for their services.
The Davis-Bacon language appears on several occasions throughout the new
statute. For example, in Sec. 136 (“Advanced Technology Vehicles Manufacturing
Incentive Program”), there is a sub-section that deals with an “Advanced Vehicles
Manufacturing Facility.” Among other things, the act provided for “not more than
$25,000,000,000 in loans to eligible individuals and entities” to carry out this aspect
of the program. In applying for a loan, the applicant “shall submit to the Secretary”
an application with such information as the Secretary may require but
including a written assurance that — ... all laborers and mechanics employed by
contractors or subcontractors during construction, alteration, or repair that is
financed, in whole or in part, by a loan under this section shall be paid wages at
rates not less than those prevailing on similar construction in the locality, as

⁴¹ Congressional Record, December 7, 2007, pp. S15007-S15009. Though a majority
favored the cloture motion, the vote fell short of the 60 votes required.
⁴² Speaker Pelosi is quoted by Dina Cappiello and Richard Rubin, “Senators Examine
Options for Getting Energy Bill Past Filibuster Threshold,” CQ Today, December 10, 2007,
p. 29.
⁴³ See Cappiello and Rubin, “Senators Examine Options for Getting Energy Bill Past
Filibuster Threshold,” CQ Today, December 10, 2007, p. 29; Bureau of National Affairs,
Daily Labor Report, December 11, 2007, p. A6; Cappiello,”Democrats Push Ahead on
Energy Bill,” CQ Today, December 12, 2007, p. 25; Cappiello and Rubin, “Vote on Whether
to Bring Energy Bill to Senate Floor Expected to Be Close,” CQ Today, December 13, 2007,
p. 3; and Cappiello, “Senate Removes Tax Package From Energy Bill, Clearing Way for
Enactment,” CQ Today, December 14, 2007, p. 21.
⁴⁴ Congressional Record, December 13, 2007, p. S15432.
⁴⁵ Congressional Record, December 18, 2007, p. H16752. See also Bureau of National
Affairs, Daily Labor Report, December 17, 2007, p. A9, and December 19, 2007, p. A8.

determined by the Secretary of Labor in accordance with sections 3141-3144,

3146, and 3147 of title 40, United States Code.

Essentially, the same language resurfaces with each new energy-related program that
deals with aspects of construction.⁴⁶
Davis-Bacon and the Farm Bill (H.R. 2419)
The Farm, Nutrition, and Bioenergy Act of 2007 (H.R. 2419), as passed by the
House, contains loan guarantees for biorefineries and biofuel production facilities.
It was the construction of these plants that suggested a Davis-Bacon provision and
encouraged the Committee on Agriculture to propose one.
H.R. 2419 was passed by the House on July 27, 2007, with Davis-Bacon a part
of the new farm bill. On December 14, 2007, a much expanded farm bill was
approved by the Senate (apparently without Davis-Bacon). The Senate asked for a
conference. That request did not meet with an immediate response; and, the process
continued into the spring without resolution and is ongoing.
Consideration by the House
H.R. 2419, as reported from committee, provided that, as a condition for
receiving a loan or loan guarantee, the applicant “shall ensure that all laborers and
mechanics employed by contractors or subcontractors in the performance of
construction work financed in whole or in part” with such loan or loan guarantee,
“shall be paid wages at rates not less than those prevailing on similar construction in⁴⁷
the locality, as determined by the Secretary of Labor....”
At the full committee level, Representative Marilyn Musgrave, a long- time
critic of Davis-Bacon, proposed striking the prevailing wage provision. But, in a⁴⁸
recorded vote, the provision was sustained: 17 ayes to 26 nays. Shortly thereafter,
during a late evening session, the Rules Committee decided that the farm bill should
be promptly considered and, with H.Res. 574, the measure was brought up the
following day, July 26, 2007.
As debate on the rule progressed, the Davis-Bacon Act remained as an⁴⁹
undercurrent. Representative Bob Goodlatte observed:

⁴⁶ Citations, where appropriate, are taken from H.R. 6, the version as enacted, the Energy
Independence and Security Act of 2007, H.R. 6, p. 24. See also pp. 156, 160, 179-180, 216,

228, and 268.

⁴⁷ U.S. Cong., House, Farm, Nutrition, and Bioenergy Act of 2007, Report to accompany
H.R. 2419, H.Rept. 110-256, Part 1, July 23, 2007, pp. 594-595.
⁴⁸ Catharine Richert, “Farm Policy Critics Vow Floor Challenge as Panel Approves Bill,”
CQ Committee Coverage, July 19, 2007, pp. 21-22.
⁴⁹ Some 110 proposed amendments had been filed with the Rules Committee; 31 were made
(continued...)

... no one can recall a farm bill process as closed as this one, Members denied
the opportunity to deal with provisions brought into this legislation like labor
provisions and so on, not allowed to offer an amendment to take out Davis-Bacon
provisions that have no business being in farm bill legislation. And it is, in my
opinion, very disappointing.
As a result of this process, Goodlatte stated, “the provision requiring Davis-Bacon
wage rates on the new loan guarantee program for the next generation ethanol plants”
will “go unchallenged.”⁵⁰
Representative Tim Walberg, similarly, argued against “... the anti-competitive
Davis-Bacon provision included in this bill [that] would drive up the cost of building
ethanol plants and discourage alternative energy production.”⁵¹ And Representative
Phil Gingrey suggested: “If the United States is serious about moving our country to
alternative fuels, we don’t need restrictions like Davis-Bacon prevailing wages.”⁵²
As speaker after speaker argued the merits of Davis-Bacon, debate moved forward.
“It sounds to me like the Republican caucus of this body,” observed Dennis Cardoza,
“is actually considering voting against the thousands of farmers, their families, and
the millions of people throughout this country that rely on farming for their
livelihood....”⁵³ But on H.Res. 574, the vote was yeas 222 to nays 202.⁵⁴
Little was said of Davis-Bacon as the House moved on to H.R. 2419.
Representative Joe Baca recalled the good things about the farm bill, adding that
“...we have preserved the Davis-Bacon provision to ensure workers in rural America
earn a decent wage.”⁵⁵ Steve King of Iowa had his own version of developments.
“There is [a] Davis-Bacon wage scale in this bill,” he noted, and he predicted that
“...the 5^th Congressional District of Iowa will remain the number one renewable fuels
congressional district in America.” Mr. King added: “Last year we put over a billion
dollars of private capital into that, and we did so without the Davis-Bacon wage
scale. We did it,” he stated, “with merit shop wages.”⁵⁶ He also said that Davis-
Bacon results in a “20 percent increase in cost.”⁵⁷

⁴⁹ (...continued)
in order under H.Res. 574. See Adriane Kroepsch, “After Much Deliberation, Panel Offers
Rule on Farm Bill,” CQ Committee Coverage (on line), July 26, 2007, p. 1.
⁵⁰ Congressional Record, July 26, 2007, p. H8679.
⁵¹ Congressional Record, July 26, 2007, pp. H8682-H8683.
⁵² Congressional Record, July 26, 2007, p. H8684.
⁵³ Congressional Record, July 26, 2007, p. H8685. The House, pp. H8684-H8685, had just
completed a vote on a motion by Representative Ed Whitfield to adjourn — that was
defeated: yeas, 174; nays, 248.
⁵⁴ Congressional Record, July 26, 2007, p. H8686.
⁵⁵ Congressional Record, July 26, 2007, p. H8694.
⁵⁶ Merit shop wage rates refers to a standard of wages espoused by the essentially non-union
Associated Builders and Contractors which prides itself in paying “merit” scale.
⁵⁷ Congressional Record, June 26, 2007, p. H8695.

Representative Jack Kingston called inclusion of the Davis-Bacon provision a
“special-interest payoff to the unions.” Mr. Kingston averred:
... here we are at an energy crisis time. It is $3.05 if you shop all over town to
find the bargain, and we are going to increase the cost of producing ethanol. We
are going to say if you build an ethanol plant, you have to use the highly inflated
union prevailing wages. It is a special payoff to the unions.
He added: “We should not increase the price of producing energy during a fuel
crunch. It is that simple. This bill does that.”⁵⁸
On July 27, 2007, with the Davis-Bacon provision still a part of the bill, H.R.⁵⁹

2419 was called up for a vote and approved. The vote was 231 ayes to 191 noes.

Consideration in the Senate
H.R. 2419 was received in the Senate on September 4, 2007, and placed on the
Legislative Calendar under General Orders No. 339. On November 5, the Senate
commenced debate on the measure.
Early Dispute over Process. Senate consideration of the farm bill
proceeded along a somewhat different tract from House consideration. On
November 5, 2007, Senator Tom Harkin proposed Senate Amendment 3500 in which
he would strike “all after the enacting clause” of H.R. 2419 and substitute a new
bill.⁶⁰ Over the next week, some 265 amendments were proposed.⁶¹ Meanwhile,
Senator Harry Reid, in an effort to restrict the number of amendments, had
introduced delimiting proposals — a procedure that sparked hostility from some⁶²
opposing Members.
Among those in opposition to the Reid amendment was Senator Judd Gregg.
Gregg listed a series of issues that Reid would have removed from consideration.
Reid, Gregg stated, among other things, “...took off the table the issue of labor, labor
questions. Well, in my experience, labor questions have a huge impact on farm
policy, especially the immigration labor issues,” he observed, “... how you get people
who are immigrants to help you pick apples in New Hampshire, and the potatoes in⁶³
Idaho.” During debate on the farm bill, it appears, only Senator Wayne Allard
referred directly to the prevailing wage issue. “There are some things that continue
to concern me,” he suggested, though it was not clear whether he was referring the

⁵⁸ Congressional Record, June 26, 2007, p. H8696.
⁵⁹ Congressional Record, July 27, 2007, pp. H8788-H8789.
⁶⁰ Congressional Record, November 5, 2007, p. S13775.
⁶¹ Congressional Record, November 14, 2007, p. S14354.
⁶² Congressional Record, November 6, 2007, p. S13948. Reid later suggested that the
procedure was, “as Senator [Robert] Dole used to refer to [it] as decorating a Christmas
tree.” See Congressional Record, November 6, 2007, p. S13951.
⁶³ Congressional Record, November 6, 2007, p. S19351.

House-passed bill (then technically before the Senate) or the Harkin alternative
amendment, when he spoke of the “expansion of Davis-Bacon.”⁶⁴
Passage in the Senate. Debate continued and, on November 16, the Senate
voted on a Reid motion for cloture. On the cloture motion, the yeas were 55 and the
nays were 42. But, with two-thirds of the Members not having voted to support the⁶⁵
motion, it was rejected. On December 7, a second cloture motion again failed: 53
yeas, to 42 nays.⁶⁶ Finally, on December 13, a third cloture motion was agreed to by⁶⁷
a vote of 78 yeas to 12 nays. On December 14, with a vote of 79 yeas to 14 nays,
the farm bill was adopted by the Senate — but, it would appear, without a Davis-⁶⁸
Bacon provision A conference was authorized; Senate conferees were appointed.
Further Maneuvering
Almost immediately, the various interests began a campaign for further
amendment of the bill. “A showdown is brewing between Congress and the White
House over the farm bill,” columnist Catharine Richert reported in CQ Today, “as
lawmakers try to sell their reauthorization legislation to a president who wants deeper
cuts in agricultural supports.”⁶⁹ The sugar companies moved to “insert into the farm
bill” consideration of the trade with Mexico. “The proposal is designed to maintain
support for U.S. sugar prices,” Richert stated. “But the effect would be to restore
some of the trade barriers that NAFTA was intended to eliminate.” Also involved
were “producers of corn-based sweeteners,” the candy and soft drink industry, and⁷⁰
sugar for “conversion to ethanol.”
A few days later, House Agriculture Committee Chairman Collin Peterson was
reported to have begun a full rewrite of the legislation: “...negotiating a new version⁷¹
of the farm bill with the Bush administration....” But, negotiations continued

⁶⁴ Congressional Record, November 8, 2007, p. S14125.
⁶⁵ Congressional Record, November 16, 2007, p. S14592. See also “Reid Moves to Limit
Debate on Stalled Farm Bill,” CQ Today, November 15, 2007, p. 15, and “Reid Takes Farm
Bill to the Brink,” CQ Today, November 16, 2007, pp. 1 and 16, both by Catharine Richert.
⁶⁶ Congressional Record, December 7, 2007, p. S15009.
⁶⁷ Congressional Record, December 13, 2007, p. S15450.
⁶⁸ Congressional Record, December 14, 2007, p. 15639. See CRS Report No. 34130,
“Renewable Energy Policy in the 2007 Farm Bill,” December 21, 2007, by Randy Schnept
and Tom Capehard. The bill now came to over 1800 pages.
⁶⁹ Richert, “Path to Final Farm Reauthorization May Require a Delicate Balancing Act,” CQ
Today, January 14, 2008, p. 2.
⁷⁰ Richert, “U.S. Sugar Growers Look to Farm Bill for Protection in Trade with Mexico,”
CQ Today, January 17, 2008, p. 3. Richert notes that, under Senate rules, the introduction
of new materials during a conference would be subject to challenge.
⁷¹ Aliya Sternstein and Richert, “New Version of Farm Bill in Works,” CQ Today, February

11, 2008, pp. 1 and 8.

intermittently — seeming to focus upon the issue of higher taxes in order to maintain
agricultural subsidies.⁷²
On April 9, 2008, the House voted 400 yeas to 11 nays “to instruct conferees to
oppose higher taxes to fund new farm bill spending.”⁷³ Only at this point were
official conferees from the House appointed. Several extensions of the existing farm
bill were approved and, still, negotiations proceeded — largely without public
result.⁷⁴ Conferences continued through the first week of May amid intense political
bargaining. On May 13, the conferees reported to the House (H.Rept. 110-627). The
following day, the House approved the conference report: 318 yeas to 106 nays. The
Senate concurred (81 yeas to 15 nays). The measure was cleared for the White
House on May 15, 2008. The Davis-Bacon provision was retained.⁷⁵
A Presidential veto came on May 21, 2008. The President protested that
Congress had not passed “a good farm bill that I can sign.” He continued: “At a time
of high food prices and record farm income, this bill lacks program reform and fiscal
discipline.” He was critical of the use of earmarks which he suggested appeared
throughout the bill. “These earmarks, and the expansion of Davis-Bacon Act
prevailing wage requirements, have no place in the farm bill.”⁷⁶ Immediately, the
House voted to override the President’s veto: 316 ayes to 108 nays. The Senate
followed suit: 82 ayes to 13 nays.⁷⁷
However, as the Congress was adjourning for a Memorial Day session at home,
it was discovered that something that gone astray. Catharine Richert explains:
“Senators will return from the Memorial Day recess to take up farm legislation again
— except this time they will try to make sure they send a complete version to the
president.” She continued:
The problem stemmed from an error by a House enrollment clerk, who dropped
one of the original bill’s 15 titles before sending it to the White House.

⁷² Richert, “Aid for Wealthy Farmers at Issue,”CQ Today, May 5, 2008, pp. 1 and 4.
⁷³ Richert, “”Farm Bill Conference Begins with House United Behind $6 Billion in Extra
Spending,” CQ Today, April 10, 2008, p. 4. See also Congressional Record, April 9, 2003,
pp. H2119-H2121.
⁷⁴ See Richert, “Fight Over Offsets for Extra Spending Snags Resolution of Farm Bill,” CQ
Today, April 15, 2008, pp. 4 and 11; “Harkin Will Force Votes on Farm Bill Provisions If
Conference Continues to Stall,” CQ Today, April 21, 2008, p. 8; and “Bush Calls for Farm
Law Extension,” CQ Today, April 23, 2008, pp. 1 and 8.
⁷⁵ See Richert, “New Farm Deal Draws Veto Threat,” CQ Today, May 9, 2008, pp. 1and 4;
“Farm Bill Likely to Withstand Veto,” CQ Today, May 15, 2008, pp. 1and 39; and “Bush
Unlikely to Get Much Help From Republicans If He Vetoes Farm Bill,” CQ Today, May 16,

2008, pp. 9 and 10.

⁷⁶ Congressional Record, May 21, 2008, p. H4402.
⁷⁷ Congressional Record, May 21, 2008, p. H4411, and May 22, 2008, p. S4749.

While congressional Democrats say they are confident the 14 titles in the version
of the bill they overrode are now law, they still have to deal with the dropped
title, which deals with trade issues.
After weighting the option of passing a stand-alone bill with just the missing
trade title, House leaders decided the best way to avoid any constitutional⁷⁸
questions was to pass a duplicate version of the 15-title bill.
There followed a flurry of activity with several bills contesting for preeminence.
H.R. 2419 had become P.L. 110-234. But, in the interim, a new bill (H.R. 6124), a
duplicate of H.R. 2419, had been introduced in the House on May 22 and was
immediately adopted: 306 yeas to 110 nays. The replacement bill was then
dispatched to the Senate where it was placed on the Calendar as No. 753. ⁷⁹
On June 5, 2008, the new version of the farm bill (“identical to the conference
report” on H.R. 2419) was called up in the Senate and adopted by a vote of 77 ayes
to 15 nays. But, the bill’s fate (H.R. 6124) seems to be in doubt with the possibility⁸⁰
of a new veto by the President.
Davis-Bacon and Homeland Security (H.R. 2638)
In the wake of the terrorist attacks of September 11, 2001, there was a
substantial restructuring of portions of the American government — a process that
included the creation of the Department of Homeland Security (DHS).
H.R. 2638 of the 110^th Congress proposed additional funding and certain further
adjustments in the agency’s structure. The House-passed bill (June 15, 2007) did
contain a Davis-Bacon provision; but, Senate consideration was overtaken by a
consolidated appropriations bill (H.R. 2764: P.L. 110-161). In the process,
legislation was passed seemingly without reference to Davis-Bacon.⁸¹
Action in the House
On June 14, 2007, during House consideration of H.R. 2638, an appropriations
measure, Representative Harold Rogers proposed an amendment to add new

⁷⁸ Richert, “Farm Bill’s Missing Title Complicates Its Passage,” CQ Today, May 23, 2008,
pp. 1 and 22. Under a special procedure, the House passed a new bill (H.R. 6124) intended
to replace the flawed bill vetoes by the President. The Senate decided, tentatively, to move
in another direction — possibly amending the extant statute.
⁷⁹ Richert, “Delayed Farm Bill Enactment May Put International Food Aid in Trouble,” CQ
Today, June 2, 2008, p. 7.
⁸⁰ Aliya Sternstein, “Senate Clears Farm Bill With All Titles as Bush Plans Another Veto,”
CQ Today, June 6, 2008, p. 6.
⁸¹ There may also have been some dispute as to whether further reference to Davis-Bacon
was appropriate and, if so, for which programs and projects.

language to the measure. The amendment, Rogers explained, is really quite simple.
“It strikes the Davis-Bacon section in the bill.”⁸²
As reported by the House Committee on Appropriations, H.R. 2638 contained
the following provision:
None of the funds appropriated in this Act may be used for a grant or contract for
any project that does not comply with the requirements of subchapter IV of
chapter 31 of title 40, United States Code [the recodified Davis-Bacon Act]:
Provided, That the President may suspend the provisions of such subchapter
during a national emergency.⁸³
Mr. Rogers observed: “That section has consequences that I’m not sure the majority
has thoroughly thought through.” Working on the assumption that the Davis-Bacon
Act increases the cost of federal construction and that the bill would extend Davis-
Bacon to previously uncovered work, Mr. Rogers stated that the act “could unfairly
disadvantage communities that are unfortunate enough to be struck by a disaster.”
He commented:
This expansion further disadvantages small, emerging and minority businesses
new to the complex, inefficient wage and work restrictions which make it nearly
impossible for them to compete with better capitalized corporations,
disadvantaging the very companies we often seek to help following a disaster.
For these reasons, he urged his colleagues “...to support this amendment and strike
this onerous restriction on the Nation’s communities.”⁸⁴
Representative David Price, author of H.R. 2638, replied that, under the act, the
employer has “got to pay their employees, if they’re using Federal funds, not less
than the locally prevailing wage.” Homeland Security, Price stated, has “interpreted
the application of Davis-Bacon far too narrowly,” has applied the act only to Stafford
Act⁸⁵ grant programs, and to “virtually no other DHS programs.” Price continued:
“Our belief is simply that there is no good reason for denying prevailing wage
protection to jobs involved in these activities.” He noted the presidential emergency
option that would apply “in situations where Davis-Bacon requirements would truly
have a detrimental impact” but stated that “for most jobs most of the time, carrying
out the intent of this bill, fair, locally prevailing wages should prevail.” With that,
he urged “rejection of this [the Rogers] amendment.”⁸⁶

⁸² Congressional Record, June 14, 2007, p. H6472.
⁸³ The title in question, subchapter IV of chapter 31 of title 40, was the recodified Davis-
Bacon Act.
⁸⁴ Congressional Record, June 14, 2007, p. H6472.
⁸⁵ The Stafford Act is also known as the Robert T. Stafford Disaster Relief and Emergency
Assistance Act of 1988 [P.L. 100-707].
⁸⁶ Congressional Record, June 14, 2007, pp. H6472-H6473.

Later, on a vote of 145 ayes to 277 nays, the Rogers amendment was defeated.⁸⁷
With the Davis-Bacon provision still in place, the measure was passed by the House
and dispatched to the Senate where it was placed on the Legislative Calendar under
General Orders.
Action by the Senate
In the Senate, S. 1644 (the Senate version of H.R. 2638) was passed
unanimously by the Appropriations Committee and, on July 24, was called up and
considered as a substitute for the House-passed version.⁸⁸ For three days, the Senate
debated Homeland Security, voted to accept the Senate bill, and appointed conferees
(July 26, 2007).⁸⁹ However, the bill, as reported, did not have the House-approved
Davis-Bacon language, thus (along with other considerations) suggesting the need
for a conference; Senate conferees were duly appointed. At that juncture, other
matters seemed to take precedence.
Consolidated Appropriations Bill
As the first session was drawing to a close, with 11 of the 12 regular
appropriations measures pending, Congress turned to a ‘consolidated appropriations
act.’ It chose as its vehicle H.R. 2764: initially, the State-Foreign Operations
Appropriations Act for FY2008. The bill had passed the House in June and the
Senate in September 2007. Negotiations continued through mid-December, clearing
the bill for the President who signed the measure on December 26, 2007: P.L. 110-

161.

Section E of P.L. 110-161 contains an appropriation for the Department of
Homeland Security. It appears that, in the process of accommodation, references to
Davis-Bacon were not made a part of the new enactment.⁹⁰
HOPE VI Reauthorization Act of 2007 (H.R. 3524)
On January 17, 2008, Representative Kathy Castor called up H.Res. 922, a
resolution to make in order consideration of the bill H.R. 3524, the HOPE VI
Improvement and Reauthorization Act of 2007. Following debate, the House passed
the measure with a Davis-Bacon provision included. The bill was dispatched to the
Senate where it was referred to the Committee on Banking, Housing and Urban
Affairs.

⁸⁷ Congressional Record, June 15, 2007, pp. H6496-H6497.
⁸⁸ Congressional Record, July 24, 2007, pp. S9812-S9813.
⁸⁹ Congressional Record, July 26, 2007, p. S10115.
⁹⁰ See CRS Report RL34298, Consolidated Appropriations Act for FY2008: Brief Overview,
by Robert Keith.

The HOPE Housing Act
The bill (H.R. 3524) expands upon a joint federal/local community initiative,
dating from the 1990s, to renovate or replace “old, distressed public housing projects
with modern housing and new communities that are healthy, safe and affordable.”
Castor suggested that the measure “could not have come at a more important time”
given the current rash of foreclosures.⁹¹
Conversely, Representative Pete Sessions rose “in reluctant opposition” to the
bill “in its current form.” He stated that in “mandating compliance with privately
developed green building rating systems, rather than providing market-based
incentives to reach these goals,” the legislation creates burdens for contractors by
adding “further impediments to an already complicated financing structure which
could discourage developers from undertaking future projects.” Sessions affirmed
that a move to a “market-based approach, rather than the one-size-fits-all
[Washington] standard” can easily be fixed. He then turned to the logistics of
housing demolition and rehabilitation; but there was seemingly little real
disagreement. The House passed the resolution and moved on to the bill itself.⁹²
The King Davis-Bacon Amendment
As the House took up the Hope VI Reauthorization Act, Representative Steve
King rose with an amendment. It provided: “None of the funds authorized to be
appropriated under this paragraph may [be] used to pay wages in compliance with
subchapter IV of chapter 31 of title 40, United States Code.” This reference was to⁹³
the Davis-Bacon Act.
The King amendment would have stricken “the requirements for [a] Davis-
Bacon wage scale” and would have prohibited act funds from “going to a Davis-
Bacon wage scale.” Representative King explained that he was, perhaps, the only
Member of Congress who had actually “worked and lived under [a] Davis-Bacon
wage scale, and I have done that for well over 30 years.” He continued:
I have done the homework, I have done the paperwork, I have put together the
spreadsheets, and I dealt with all the employee dynamics that were involved
there.
And I make the point, Mr. Chairman, that labor is a commodity like corn or
beans or gold or oil or gasoline, and the value of it needs to be determined by the
marketplace, not by the government. And for the Federal Government to
intervene in a relationship between two people, and a contractual relationship in
particular, at the cost of the taxpayer that always favors going to a union scale
and is not a prevailing wage but it is in effect a union scale, this authorization as
written, if my amendment is not adopted, will cost the taxpayers an additional
$26 million.

⁹¹ Congressional Record, January 17, 2008, p. H299.
⁹² Congressional Record, January 17, 2008, pp. H300-H301.
⁹³ Congressional Record, January 17, 2008, p. H324.

King did not, specifically, explain the basis for the “additional $26 million,” though
he did seem to suggest that his figures were “a low average.” He stated that the
statute “is not effective,” that it “cannot keep up with a change in the wage scale,”
and, according to the Inspector General of DOL, that “nearly 100 percent of the
[Davis-Bacon] data cannot be relied upon.”⁹⁴
King’s comments triggered a response from Representative David Scott, who
stated: “...the gentleman from Iowa very cleverly used the words ‘union scale.’ This
is not union scale; this is prevailing wage scale.” Scott continued:
Now this amendment ... is very timely. Here we are in the throes of a recession,
one of the most damaging economic crises that this Nation has faced in the last
quarter of a century, and we have the gentleman from Iowa wanting to put on an
amendment that would diametrically affect the living wages of the people who
need the help the most.
Now, by preventing workers on HOPE VI projects from earning a living wage
is certainly not the right way to go.
Scott closed with the affirmation: “The Davis-Bacon prevailing wage helps attract
the necessary skilled workforce to build housing in the most efficient and cost-⁹⁵
effective manner. This,” he said of the King proposal, “is a bad amendment.”
Meanwhile, thanking Scott for his comments, Representative George Miller
explained further: “This is about prevailing wages; it is not about a union wage.”
Miller added: “...the fact of the matter is the majority in this House understands how
important this provision is to working people in this country and to the communities
in which these projects are being built.” In a statement for the Record, Miller
summarized:
The King amendment uses taxpayer money to worsen the cycle of poverty in the
poorest neighborhoods in the country. It uses taxpayer money to buy shoddy
work that just increases the costs later on. It’s difficult to tell who the
amendment is trying to hurt the most — the poor neighborhoods, the workers, or
the taxpayers.
He concluded: “This Amendment is outrageous and should be roundly defeated by⁹⁶
the House.”
Not so, remarked Representative King. He found Miller’s remarks “offensive
to me to say that my 28 years of meeting payroll, my 1,400-some consecutive weeks
of making payroll, of providing health insurance and retirement benefits and year-
around work for employees and a career path for them is, to take his words, poor
wages and poor working conditions.” Who, in this Congress, “has some experience

⁹⁴ Congressional Record, January 17, 2008, p. H324.
⁹⁵ Congressional Record, January 17, 2008, p. H325.
⁹⁶ Congressional Record, January 17, 2008, p. H325.

that can step forward and say otherwise?” King concluded: “I urge the adoption of
my amendment.”⁹⁷
On a recorded vote, the ayes were 136 and the nays were 268. The King
amendment was defeated.⁹⁸ The House then passed the bill (271 ayes to 130 nays)
and sent the bill on to the Senate.
Consideration by the Senate
On January 22, 2008, the Hope VI reauthorization was received in the Senate
and was referred to the Committee on Banking, Housing and Urban Affairs.
Indian Health Care Amendments of 2007
During the spring of 2007, two bills were introduced (H.R. 1328 and S. 1200),
respectively in the House and in the Senate, that dealt with improvements in Indian
health care and facilities. In each case, the bills contained a provision for Davis-
Bacon coverage of any construction ‘funded in whole or in part’ with federal funds
associated with Indian health care. The bills began to move along relatively straight
forward tracts; but, ultimately, the Senate moved more quickly — adopting new
language and moving a Senate-passed bill on to the House for further consideration.
The Pallone Bill (H.R. 1328)
In the House, on March 6, 2007, the Indian Health Care Improvement Act
Amendments of 2007 was introduced (H.R. 1328) by Frank Pallone. The bill was
referred to the Committees on Natural Resources, Energy and Commerce, and Ways
and Means.
Hearings were conducted by the Natural Resources Committee and the bill was
ordered to be reported in early April 2007.⁹⁹ Under labor standards, Section 303(b),
the bill provides:
For the purposes of implementing the provisions of this title, contracts for the
construction or renovation of health care facilities, staff quarters, and sanitation
facilities, and related support infrastructure, funded in whole or in part with
funds made available pursuant to this title, shall contain a provision requiring
compliance with subchapter IV of Chapter 31 of title 40, United States Code
(commonly known as the ‘Davis-Bacon Act’).

⁹⁷ Congressional Record, January 17, 2008, p. H325.
⁹⁸ Congressional Record, January 17, 2008, p. H330. See also Bureau of National Affairs,
Daily Labor Report, January 24, 2008, p. A7.
⁹⁹ Hearings were also held by the House Energy and Commerce Committee, Subcommittee
on Health. On November 7, 2007, the measure was ordered reported to the full Committee
by a voice vote. The Committee on Ways and Means has not yet reported the bill.

In its report (H.Rept. 110-564, Part 1), the Committee noted, “...it is the intention of
the Committee to maintain current law. When Indian health facilities are constructed
or renovated, Davis-Bacon prevailing wage rates apply.” The Report continued:
However, pursuant to current federal law and longstanding policy of the
Department of Labor, Indian Health Service, and Bureau of Indian Affairs, when
Indian tribes and tribal organizations construct or renovate federally-funded
Indian health facilities using their own employees, Davis-Bacon prevailing wage
rates do not apply.
Finally, the report notes: “The Intention of the Committee is to maintain the status
quo of current law and policy pursuant to the Davis-Bacon Act and the Indian Self-
Determination and Education Assistance Act in this regard.”¹⁰⁰
The Indian health care bill was multifaceted with the Davis-Bacon provision
being only one small part of the measure.
The Dorgan Bill (S. 1200)
Shortly after the Pallone bill was introduced, Senator Byron Dorgan introduced
a companion bill, also entitled the Indian Health Care Improvement Act
Amendments. The bill was referred to the Committee on Indian Affairs of which
Dorgan was chair. He noted that similar legislation had been under consideration
through the past several Congresses. “Eight years is too long to wait...,” he stated,
observing that he “intends to move aggressively to seek approval of this
legi slation.”¹⁰¹
Provisions of the Dorgan Bill. Like the Pallone bill, the Dorgan bill
contained a Davis-Bacon provision — subchapter IV of Chapter 31 of title 40, United
States Code (commonly known as the ‘Davis-Bacon Act’) — but with several
caveats under which the Davis-Bacon Act would not apply in a strictly orthodox
manner.
^!First: The construction or renovation may be “performed by a
contractor pursuant to a contract with an Indian Tribe or Tribal
Organization with funds supplied through a contract or compact
authorized by the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450 et seq.), or other statutory authority;”
^!Second: Or, it may be “subject to prevailing wage rates for similar
construction or renovation in the locality as determined by the Indian
Tribes or Tribal Organizations to be served by the construction or
renovation.”

¹⁰⁰ U.S. Congress, House of Representatives, Committee on Natural Resources, Indian
Health Care Improvement Act Amendments of 2007, 110^th- Cong., 2^nd Sess., H.Rept. 110-

564, Part I, April 4, 2008, pp. 42 and 117.

¹⁰¹ Congressional Record, April 24, 2007, p. S4926.

^!Third: “This subsection shall not apply to construction or renovation
carried out by an Indian Tribe or Trival Organization with its own
employees.”¹⁰²
Thus, the Dorgan bill would do three things. First. It reaffirms the existing
Davis-Bacon provision but changes the old citation (40 U.S.C. 276a to 276a-5) to a
recodified citation (subchapter IV of chapter 31 of title 40). Second. It provides that
jurisdiction over Davis-Bacon rates, formerly the exclusive preserve of the Secretary
of Labor, can be transferred to “Indian Tribes or Tribal Organizations.” Third. It
provides a rather standard exception from the act that allows work performed by the
employees of “an Indian Tribe or Tribal Organization” (in-house staff) to be
unprotected in terms of Davis-Bacon standards.¹⁰³
Some Policy Implications. Initially, it appears, the Administration may not
have taken the new proposals seriously. The Pallone bill contained a straight-forward
reiteration of Davis-Bacon coverage; the Dorgan bill, a more complex proposal to
allow Indians or tribal organizations an opportunity to share in determining wage
rates for Davis-Bacon purposes. If there was opposition to the proposal(s), it was not
immediately apparent.
Then, under date of January 22, 2008, the Office of Management and Budget
(OMB) released a statement critical of the “expansion of Davis-Bacon” and
suggesting: “If this provision is included in the final bill presented to the President,
his senior advisors would recommend he veto the bill.” OMB did not explain in
what manner Davis-Bacon would be expanded, because Davis-Bacon was already a
part of the statute. Further, under the Dorgan proposal, the Department of Labor
could find its duties diminished in scope, primarily because of the new Tribal
primacy with respect to the establishment of Davis-Bacon rates.¹⁰⁴
On February 14, 2006, a colloquy occurred between Senators Edward Kennedy,
Lisa Murkowski, and Dorgan. The colloquy opened with Senator Kennedy.
Mr. KENNEDY. I understand that in the managers’ amendment, section 303(b)
of the bill has been modified so that the language is now identical to current law;
is that correct?

¹⁰² See S. 1200, the Indian Health Care Improvement Act, as introduced on April 14, 2007,
pp. 160-161.
¹⁰³ It may not be clear just what the impact of the devolution of enforcement policy to the
several hundred “Tribes or Tribal Organizations” would be, since these entities would be,
it seems, largely independent and could it would appear, operate under their own rules.
¹⁰⁴ Bureau of National Affairs, Daily Labor Report, January 23, 2008, p. A9. For the OMB
document, see [http://www.whitehouse.gov/omb/legislative/sap/110-2/saps1200-s.pdf]. As
proposed, part of the enforcement policy and procedures would be shifted from the
Secretary of Labor to “Indian Tribes or Tribal Organizations” — a somewhat unclear
definition since there could be several hundred such organizations with different standards
for implementing the Davis-Bacon Act.

Mr. DORGAN. Yes. The intent of the provision in the managers’ amendment
to the bill is to maintain current law. Generally, when Indian health facilities are
constructed or renovated, Davis-Bacon prevailing wage rates apply. However,
pursuant to current Federal law and longstanding policy of the Department of
Labor, Indian Health Service, and Bureau of Indian Affairs, when Indian tribes
and tribal organizations construct or renovate federally funded Indian health
facilities using their own employees, Davis-Bacon prevailing wage rates do not
apply. Our intention in the managers’ amendment is to maintain the status quo
of current law and policy in these regards.
Mr. KENNEDY. So this language does not change the construction or
application of existing statutes?
Mr. DORGAN. Correct, it does not change current law. It is our intent that the
prevailing wage provisions in both the Indian Health Care Improvement Act and
the Indian Self-Determination and Education Assistance Act will continue to
apply when Federal funds are used for the construction and renovation of Indian
health facilities, except where such work is carried out by tribal or tribal
organization employees.”¹⁰⁵
Senator Murkowski joined in the dialogue, expressing the same sentiment: that is,
that nothing in the statute had been changed — merely recodified.
On February 26, 2008, the Indian health care bill was approved by the Senate
(83 yeas to 10 nays), with the Davis-Bacon provision remaining in the measure.¹⁰⁶
Back to the House
On February 28, 2008, the bill was received in the House and was referred to
the Committees on Natural Resources, on Energy and Commerce, and on Ways and¹⁰⁷
Means.

¹⁰⁵ Congressional Record, February 14, 2008, pp. S1040-S1041.
¹⁰⁶ Congressional Record, February 26, 2008, p. S1155. However, the language was
changed so that ‘Davis-Bacon’ doesn’t appear. References to a transfer of responsibilities
from the Department of Labor to various Indian tribes and tribal organizations, where Davis-
Bacon is concerned, were deleted in the Senate version.
¹⁰⁷ Drew Armstrong, “Senate Aims to Complete Work on Indian Health Care Overhaul Bill,”
CQ Today, February 25, 2008, pp. 10 and 12.

Improving Public School Facilities
On February 13, 2008, George Miller, Chairman of the Committee on Education
and Labor, presided over a hearing on the physical state of America’s schools. “We
all agree on the urgent national priority of providing every child with a world-class
education...,” Mr. Miller began. “It is clear that we cannot satisfy that priority unless
we help states and school districts improve the physical condition of their school
buildings and facilities.” He concluded: “We can help mitigate the [current]
economic damage by investing in school construction projects that will create jobs¹⁰⁸
and inject demand into the economy.”
General Discussion of Davis-Bacon
The Committee’s Ranking Republican, Howard McKeon, tended to disagree
with Chairman Miller’s views, not on general substance, but on the source of
funding. “Traditionally, states and local communities have retained control over
education,” McKeon stated, “particularly public K-12 education.” He pointed to the
“costly mandates” that would “threaten the autonomy ... maintained at the state and
local level” — such as the Davis-Bacon Act. Mr. McKeon suggested that the
“Depression-era” statute can “drive up the cost of federal projects.”¹⁰⁹ Again: “Just
yesterday, the Committee received a letter from leading business and construction
groups outlining flaws within the Davis-Bacon wage mandates....”¹¹⁰
Several Members appeared before the Committee as witnesses. Representative
Charles Boustany urged that the Committee consider “...one federal mandate that
makes already expensive projects even more expensive....” namely, the Davis-Bacon
Act. Mr. Boustany was “hopeful that the committee will focus on the critical
shortcomings in the way those Davis-Bacon wages are calculated.”¹¹¹ He suggested
a 20 to 25 percent increase in total costs arising from Davis-Bacon, observing that a
study by researchers at Suffolk University (Boston) found that “the current method
inflates wages by 22 percent” overall. “I challenge anyone on this committee to argue
that the Davis-Bacon wage surveys are scientific surveys that need no
improvements.” Boustany stated: “Either taxpayers get overcharged by the system,

¹⁰⁸ Prepared remarks of Chairman Miller when introducing the hearing on school facilities
before the Committee on Education and Labor, February 13, 2008. See also H.R. 2470,
H.R. 3021, H.R. 5401, S. 912, and others.
¹⁰⁹ Press release from the office of Representative McKeon, February 13, 2008.
¹¹⁰ Statement of Representative McKeon, February 13, 2008, before the Committee on
Education and Labor. Among signers to the letter were the U.S. Chamber of Commerce, the
National Federation of Independent Business, and Associated Builders and Contractors.
¹¹¹ Some have suggested that DOL’s wage rate calculations may be, in fact, substantially
out-of-date and therefore reduce the effectiveness of the act. Mr. Boustany may well have
concurred. “Many construction employees are actually underpaid using the flawed
determination method instead of superior BLS figures.” Employees in Florida, North
Carolina, Michigan, Virginia, and Maine were some of those Americans who got cheated
by the current system’s shortcomings.” See statement of Representative Boustany before
the Committee on Education and Labor, February 14, 2008.

or construction employees are underpaid.” He urged the Committee “to fix Davis-
Bacon before imposing it on future school construction projects.”¹¹²
Representative Steven King had also read Suffolk University study and asked
that it be made a part of the record.¹¹³ Mr. King alluded to work from his own
experience with Davis-Bacon. Citing the General Education Provisions Act or
GEPA [20 U.S.C. 1232b], he observed that the “Davis-Bacon mandate would apply
to any bill that received federal dollars for construction or renovation” and affirmed
that “...Davis-Bacon is the federal government intruding in the affairs of the
States....” He charged that the act is “anti-competitive.” Mr. King affirmed: “Non-
union companies, like the one I started, are seriously hurt by Davis-Bacon provisions.
Small Businesses,” he concluded, “simply can’t compete....”¹¹⁴
Jim Waters of Bowling Green, Kentucky, spokesperson for the Bluegrass
Institute for Public Policy Solutions, Kentucky’s “free-market think tank,” was also
a witness. Waters stated that Kentucky’s “‘prevailing wage’ law represents “a well-
intentioned policy gone awry.” The Kentucky law “prevents state government from
receiving the most value for every dollar spent on public projects” and increases the
cost of infrastructure “by 10 to 15 percent.” Waters questioned how “contractors
build quality office complexes, large custom homes, investment properties and
corporate facilities without being coerced by some kind of forced wage policy?”¹¹⁵
Several open shop contractors and business spokespersons had asked that
application of Davis-Bacon to school construction be withheld “until serious flaws
with the laws’s wage determination process are fixed.”¹¹⁶
House Considers a Construction Bill: H.R. 3021
Representative Ben Chandler had introduced H.R. 3021, the 21^st Century High-
Performing Public School Facilities Act, in early July 2007. That bill now became
a vehicle for the Committee.
The Chandler bill stated that “at least one-third” of our public school buildings
“need extensive repair or replacement and two-thirds have troublesome
environmental conditions such as the presence of asbestos or lead in water and
paint.” The average public school building was built in the early 1960s, it stated, and
now needs “hundreds of billions of dollars in construction, modernization, and

¹¹² Representative Boustany before the Committee on Education and Labor, February 13,

2008.

¹¹³ See Sarah Glassman, Michael Head, David G. Tuerck, and Paul Bachman, The Federal
Davis-Bacon Act: The Prevailing Mismeasure of Wages (Boston: The Beacon Hill Institute
at Suffolk University, February 2008, 57 pp.
¹¹⁴ Representative King before the Committee on Education and Labor, February 13, 2008.
¹¹⁵ Jim Waters before the Committee on Education and Labor, February 13, 2008.
¹¹⁶ Sheila R. Cherry, “Panelists Urge Labor Committee Not to Add Davis-Bacon Act to
School Construction Bills,” Bureau of National Affairs, Daily Labor Report, February 22,

2008, p. A5.

repair” to bring them up to standards. The Chandler bill observed that there was a
direct link between the quality of school facilities and the academic achievement of
students. Bringing elementary and secondary schools “up-to-date” will help improve
“academic performance and will improve teacher retention.”¹¹⁷
Views of the Majority. On April 30, 2008, the Committee conducted a full
committee mark-up of H.R. 3021. In summarizing the legislation, the report
presented by Representative Miller noted, noted that “construction, modernization,
repair, and renovation projects” will be Davis-Bacon covered.
Davis-Bacon requirements will help control costs, ensure higher quality work,
and improve safety. Studies have shown that, where prevailing wages are not
required, contractors compete on the basis of labor costs, frequently resulting in
poor construction quality as well as substantial cost and time overruns due to
cheaper workers’ lower levels of skill, productivity, and training. Where
prevailing wages are paid, higher rates of productivity, safety, and building
quality more than offset the cost of higher wages.
The report continued: “Davis-Bacon requirements help save federal, State, and local
revenue.” Further: “Studies have found that repeal of local prevailing wage laws
results in lower incomes, loss of sales tax revenues, and a general loss of economic
activity.” It concluded: “These are precisely the types of effects the Committee
intends to avoid by providing federal assistance to local communities consistent with¹¹⁸
Davis-Bacon.”
It wasn’t necessary to add Davis-Bacon to the bill. Under the General Education
Provisions Act or GEPA, such programs would automatically be covered.¹¹⁹ But,
conversely, critics of Davis-Bacon were desirous of striking that provision.
Views of the Minority. Representative McKeon (with his colleagues) spoke
for the minority. “One of the most troubling aspects of a massive new federal school
construction program authorized through H.R. 3021,” they stated, was the Davis-
Bacon requirement. The prevailing wage system “has proven to be fundamentally
flawed, often bearing no relation to market wages” and tends to “favor union wage
workers.” And, the cost impact from Davis-Bacon is “staggering.” The
Congressional Budget Office (CBO) and GAO were cited.

¹¹⁷ Language, here, is from H.R. 3021 as introduced.
¹¹⁸ U.S. Congress., House of Representatives, Committee on Education and Labor, Report

110-623, 21^st Century Green High-Performing Public School Facilities Act, pp. 14-15.

(Cited hereafter as H.Rept. 110-623.) The majority cited two studies: Peter Philips, “Square
Foot Construction Costs for Newly Constructed State and Local Schools, Offices and
Warehouses in Nine Southwestern and Intermountain States, 1992-1994,” Prepared for the
Legislative Education Study Committee, New Mexico State Legislature, September 6, 1996;
and Michael P. Kelsay et al., “The Adverse Economic Impact from Repeal of the Prevailing
Wage Law in Missouri,” Council for Promoting American Business, January 2004.
¹¹⁹ H.Rept. 110-623, pp. 4 and 18.

CBO estimates that the federal government could save more than $10.5 billion
in construction costs if it were to repeal the Davis-Bacon Act. (...) The GAO is
also on record in stating that the Davis-Bacon Act is, ‘not susceptible to practical
and effective administration’ by the Department of Labor and that Davis-Bacon
has resulted in unnecessary construction and administration costs, inflated prices,
and inaccurate wages.
They suggested, as a minimum, a new system of wage-rate calculation under the
Bureau of Labor Statistics (within the Department of Labor).
In some cities, the wage determinations are more than 75 percent above market
wages. In other cities, they are just one-third of market wages. In some states,
Davis-Bacon rates are actually below the minimum wage. These wage
determinations simply do not reflect prevailing market wages and this failure has¹²⁰
serious implications for construction workers and taxpayers.
Citing a study by the National School Boards Association, Representative McKeon
and his associates argued that “at least 38 states would have to endure significantly
increased school construction costs if Davis-Bacon were imposed....”¹²¹ The Davis-
Bacon mandate, the minority stated, “will only over inflate school construction
prices, limit competition, and reduce jobs for entry-level workers.”¹²²
The minority urged that “new school construction” be exempted from Davis-
Bacon coverage. But, in Committee, a McKeon amendment was rejected: 16 ayes
to 27 nays.¹²³ On May 8, 2008, the Committee reported H.R. 3021.
Floor Consideration in the House
On June 3, 2008, H.R. 3021 was approved for floor consideration under H.Res.

1234; on June 4, h.r. 3021 was called up, debated and passed by a vote of 250 yeas¹²⁴

to 164 nays.
Despite earlier discussion of the Davis-Bacon Act, little attention was paid to
the act during debate on passage of the bill. In a general summary of the measure,
Representative McKeon noted that the bill would “link this funding to the
Depression-era Davis-Bacon Act.” Mr. McKeon added: “The problem is, prevailing
wage calculations are critically and fundamentally flawed” with some rates “higher
than market rates and other times they are lower.”¹²⁵ Later, Representative Carolyn
McCarthy responded: “...as far as having David-Bacon, why should not we have

¹²⁰ H.Rept. 110-623, pp. 34-36.
¹²¹ H.Rept. 110-623, p. 36.
¹²² H.Rept. 110-623, p. 37. The minority cited the Beacon Hill Institute study, noted above,
and studies of implementation of state ‘Davis-Bacon’ provisions utilized in Ohio and
Kentucky — but these studies were not named.
¹²³ H.Rept. 110-623, pp.20 and 38.
¹²⁴ Congressional Record, June 4, 2008, p. H4961.
¹²⁵ Congressional Record, June 4, 2008, p. H4937.

prevailing wage for those that work in the community, pay the wages, and also have
good construction done?”¹²⁶
On June 6, 2008, H.R. 3021 was received in the Senate. The measure is said to
be “strongly” opposed by the White House.¹²⁷
Appropriations: Departments of Transportation
and HUD (H.R. 3074)
On July 22 and 24, 2007, the House took up H.R. 3074, the appropriations for
the Departments of Transportation, Housing and Urban Development, and Related
Agencies. Ultimately, the measure was added to H.R. 2764, the Consolidated
Appropriations Act of 2008.
Proposal by Representative King
Representative John W. Olver presided over discussion that dealt with the more
delicate points of housing and transportation that began with the phrase: “None of the
funds made available in this Act....”
As debate proceeded on H.R. 3074, Representative Steve King proposed an
amendment: “None of the funds made available under this Act may be used to
implement the provisions” of the Davis-Bacon Act. Under House rules,
Representative King was recognized for 5 minutes, together with a Member opposed¹²⁸
to the amendment — Mr. Olver.
Representative King explained that the amendment “strikes the requirements for
the Davis-Bacon Act within the appropriations of this bill.” He continued by noting
his experience with Davis-Bacon, both as a recipient of Davis-Bacon wages and as
a contractor through many years, and noted the paperwork requirements under the
act. “I’m maybe the only one in Congress who has real hands-on experience ... of
dealing with the additional costs that are involved with the Federal wage scale that’s
Davis-Bacon.” He explained that projects, covered by Davis-Bacon, from his
experience, add “anywhere from 8 percent increase in the cost of the projects up to
35 percent increase in the cost of the projects.” But, he rounded the numbers off at
“20 percent additional costs.”
Mr. King stated that he supported a free market economy: “...of labor being able
to collectively negotiate the value of their work....” He added:

¹²⁶ Congressional Record, June 4, 2008, p. H4940.
¹²⁷ Libby George, “Bill Aided at Building Environmentally Friendly Schools Heads Toward
House Vote,” CQ Today, June 4, 2008, p. 11.
¹²⁸ Congressional Record, July 24, 2007, p. H8375.

I believe that if two adult individuals want to enter into a contractual agreement,
they should be able to do so without interference of the Federal Government.
This is not a prevailing wage in practice. It’s only a prevailing wage by statute.
Actually, it is union scale....
Representative King suggested: “Some places, it’s [the Davis-Bacon wage] actually
below the prevailing wage. Other places, it distorts that prevailing wage
dramatically.” Why, he asked, should we limit our resources “by imposing such a
draconian, top-down, Federal management tool that not only costs a lot more money,
but it makes it a lot, lot harder to manage your projects?”¹²⁹
The Issue Debated
Representative Olver then rose to defend use of Davis-Bacon requirements.
After noting that the act had been adopted “by a Republican Congress and a
Republican administration” about 75 years ago, Representative Olver affirmed:
Without Davis-Bacon, the transportation construction industry, which is
responsible for building our highways and transit systems, might suffer from
low-bid firms that aim to undercut local wages and perform construction on the
cheap.
Davis-Bacon encourages a higher quality of workmanship, and we should not do
away with the law for transportation construction where we need the highest
quality and the longest lasting workmanship.
With that, Mr. Olver urged rejection of the King amendment.¹³⁰
In response, Representative King stated that he had “worked on union shop and
merit shop jobs, both as an employer and as an employee.” He added: “...I don’t
think we can apply high quality strictly to union.” And, he continued: “In fact, merit
shop employees do a fantastic job with the work that they’re doing, and they take
pride in it....” But it may not have been the wage rate that most disturbed Mr. King.
My greatest frustration with Davis-Bacon wage scale is not the wage itself. It’s
that it takes away my ability to manage a project and my ability to provide
incentives for employees to make decisions themselves on the ground.
I have to manage them more when they’re under a Davis-Bacon wage scale....
It distorts the work we do. It distorts the skills and the complement of the skills,
and it raises the cost of everything that we do in the construction business.
Referring to merit shop construction, King stated: “They make out better, we make
out better, and we’ve got more consistent employees.”¹³¹

¹²⁹ Congressional Record, July 24, 2007, pp. H8375-H8376.
¹³⁰ Congressional Record, July 24, 2007, p. H8376.
¹³¹ Congressional Record, July 24, 2007, p. H8376.

King demanded a recorded vote. The ayes were 148 and the nays were 278.
The King proposal failed.¹³²
Combined in the Appropriations Process
With the King proposal rejected, debate moved on to other matters. But,
ultimately, H.R. 3074 was added to H.R. 2764, the Consolidated Appropriations Act
of 2008.
Appropriations: Agriculture and
Rural Development (H.R. 3161)
In late July and early August 2007, the House took up H.R. 3161, the
Agriculture, Rural Development, Food and Drug Administration, and Related
Agencies Appropriations Act (2008). Representative Rosa L. DeLauro presided
over the discussion.
Proposal by Representative Kingston
As with the farm bill, some portions of H.R. 3161 dealt with renewable energy.
And related concerns. As debate progressed, Representative Jack Kingston rose with
an amendment.
None of the funds made available in this Act shall be used to pay the salaries or
expenses of any employee of the Department of Agriculture who would require
contracts to construct renewable energy systems to be carried out in compliance¹³³
with the provisions of the Davis-Bacon Act.
Mr. Kingston noted that “people are paying $3.10 for gas” or higher: the rate is on
the rise. “We are importing 60 percent of our oil.” He continued: “During this time
when we are in desperate need for alternative energy options, we should not increase
the price of making cellulosic ethanol. And yet,” he stated, “in the Ag bill, there was
a clause that says if you are building an ethanol plant, you have to have prevailing
wages [the Davis-Bacon provision], which drives up the cost of the plant and,
therefore, drives up the cost of ethanol.”¹³⁴
The Issue Debated
Representative DeLauro rose to claim the time in opposition to the amendment
and then yielded to Representative Robert C. Scott.

¹³² Congressional Record, July 24, 2007, p. H8385. See also H.R. 3412, a free-standing
proposal by Representative King of Iowa that would repeal the Davis-Bacon Act. H.R. 3412
has been referred to the Committee on Education and Labor, Subcommittee on Workforce
Protections. No action has yet been taken.
¹³³ Congressional Record, August 2, 2007, p. H9628.
¹³⁴ Congressional Record, August 2, 2007, p. H9628.

Scott proceeded with a rebuttal. “This amendment smacks right at the heart of
our wage structure, of fair wages and protected wages. Long before Taft-Hartley,
before the Wagner Act, this was put on the books in 1931, 76 years ago.” Then,
Representative Scott added: “...Davis-Bacon was put on the books by a Republican
administration, President Hoover, because at that time it was needed to have wage
stabilization.” Mr. Scott suggested that Davis-Bacon was “the cornerstone of the
wage protection structure in this country” and noted: “Davis-Bacon prevents
underbidding of any contractor coming in on a government contract, low bidding and
attempting to bring in a contract and hire workers below the prevailing wage.” Then,
looking to the precise amendment, he stated that it was “dealt with in the Agriculture
Committee and soundly defeated at that time.”
Representative Scott then went on to a central issue. “In the Ag bill, we have
dedicated $4 billion for loan guarantees to set up ethanol plants. Now, Mr.
Chairman, these are highly sophisticated operations ... clearly we need the best talent,
the best skills.” He went on to discuss the nature of Davis-Bacon and the rationale
for its enactment. “These protections were put in to prevent fly-by-night operations
from coming into a community.” Abridgment of the Davis-Bacon Act, he suggested,
would be “wrong ... and, quite honestly, unAmerican.”¹³⁵
Mr. Kingston reclaimed his time but was then joined by Representative King of
Iowa. “Prevailing wage by definition, union scale in practice, there is no other way
to analyze this. Union scale is what gets produced,” King stated, “when the
Department of Labor produces the proposed prevailing wage.” Mr. King went on to
the logistics of the new energy:
There was over a billion dollars invested in renewable energy in my district last
year. There will be over a billion dollars invested this year. We are number one
in biodiesel production in America of the 435 districts.
King affirmed: “... there is no way that any other district in the country has a hope of
catching up with the Fifth Congressional District of Iowa if you are going to impose
Davis-Bacon wage scales on this....”¹³⁶
Representative Sam Farr rose to challenge the critics of Davis-Bacon. Mr. Farr
noted that California “has done more for cutting energy costs by doing energy
conservation and renewable energy,” and he stated: “...every one of those facilities
was built under Davis-Bacon law.” He stated that the amendment was an effort to
“get at labor ... try to cut wages, go to the lowest cost.” And Representative Farr
added: “This is the wrong way to do it. It is a mean amendment, and it should be
defeated.”¹³⁷
There may have been some measure of irony, here. “If this was about free
enterprise,” Kingston responded, “this clause would not be in the farm bill.” He

¹³⁵ Congressional Record, August 2, 2007, p. H9628.
¹³⁶ Congressional Record, August 2, 2007, pp. H9628-H9629.
¹³⁷ Congressional Record, August 2, 2007, p. H9629.

added: “...my biggest gripe is that it is making energy costs go up because it is
making the construction of alternative energy facilities higher.” Ms. DeLauro, in
closing out the debate, affirmed: “I urge my colleagues to oppose this amendment.
Why? Why would we want to deny American workers, including those involved in
rural development, the opportunity to receive their prevailing wage protection. It’s
a matter of fairness for working men and women.”¹³⁸
Representative Kingston demanded a roll-call vote on his projected amendment.
The vote was ayes 152 and nays 278.¹³⁹ The Kingston amendment was defeated.
“Helper” Issue and Manpower Utilization
Through the past half-century, the question of “helpers” has emerged as a Davis-
Bacon issue: sometimes in legislative format; on other occasions, as an
administrative matter. It will likely continue to be raised as Davis-Bacon remains a
matter before Congress — both as to the definition of a “helper” and with respect to
the use of helpers on Davis-Bacon covered projects.
DOL Efforts to Change the Helper Requirement
The Davis-Bacon Act makes no mention of “helpers,” nor does it refer to
“trainees,” “apprentices,” or other skill groups. Rather, it refers to “various classes
of laborers and mechanics” and then leaves up to the Secretary of Labor the
determination of just what those “various classes” might be and how they might be
distinguished one from the other.¹⁴⁰
Under Davis-Bacon, before bids are solicited, the minimum locally prevailing
wage rate is determined for each category of worker to be used on the project. Where
a helper category is not recognized in the locality of the projected construction, craft
or laborer rates have to be paid, potentially (but not necessarily) increasing the labor
cost of construction. Labor proponents maintain that recognition of a helper
category could defeat the purposes of the act: that is, allowing contractors to fragment
tasks so that low-skilled, low-wage helpers could be employed. Some argue that
such a policy could result in a downward wage spiral and that employment of helpers
would undercut apprenticeship programs with a generally deleterious impact upon
skills transfer.
Through the years, helpers have been employed on Davis-Bacon construction
where their use was common in the area and where they are clearly distinguished
from laborers or craft workers. However, their use appears to have been infrequent.
During the late 1970s, the Carter Administration opened the general issue of Davis-

¹³⁸ Congressional Record, August 2, 2007, p. H9629.
¹³⁹ Congressional Record, August 2, 2007, p. H9644. Ultimately, H.R. 3161 was added to
H.R. 2764, the Consolidated Appropriations Act of 2008.
¹⁴⁰ For general background, see Herbert R. Northrup, “The ‘Helper’ Controversy in the
Construction Industry,” Journal of Labor Research, Fall 1992, pp. 421-435.

Bacon implementation. Seizing the opportunity, industry urged a closer adherence
to area practice when establishing worker classifications — “especially ‘helper’
classifications.”¹⁴¹ Before new Davis-Bacon regulations could be given effect,
President Carter was replaced by President Reagan. Regulations proposed by the
former Administration were withdrawn and their substance reconsidered.
New regulations proposed by the Reagan Administration (May 1982) redefined
the concept of helper and, potentially, expanded their use: a change applauded by
industry and objected to by the building trades unions.¹⁴² Litigation followed. In
order to circumvent objections raised by the courts, DOL redrafted the helper
regulations. In January 1989, during the Bush Administration, the courts acquiesced
in DOL’s judgment and cleared the regulations for implementation. But, at that
juncture, Congress objected, refusing to appropriate funds for implementation and
enforcement of the new regulations. This restraint continued into the middle 1990s
by which time the agency was free to act. Then, another impediment was raised:
DOL, under the Clinton Administration, declined to move forward with the
regulation.
In June 1996, the Associated Builders and Contractors brought suit to require
DOL to enforce its helper regulations. Confronted with impending litigation,
Assistant Secretary of Labor Bernard Anderson affirmed that the helper regulation
(approved, but not enforced) was “simply ... non-administratable.” Anderson
explained that the distinction between helpers and other workers was insufficiently
clear: that DOL had no intention of implementing the regulation in its current form.¹⁴³
In August 1996, DOL noted that, during the 14 years that had passed since the
regulation was first published, “additional information has become available which
warrants review of the suspended rule.”¹⁴⁴ The regulation remained in abeyance.
Through the next several months, DOL reassessed the data and, in December
1996, it announced that the helper regulation would remain suspended for the
immediate future.¹⁴⁵ In July 1997, the U.S. District Court for the District of
Columbia ruled that the Department was within its rights to issue an indefinite
suspension of the helper regulation.¹⁴⁶ Then, in April 1999, DOL issued a new
proposed rule that would, essentially, reaffirm the status quo prior to the Carter
Administration initiatives of the late 1970s — two decades earlier.¹⁴⁷ Thus, the use
of helpers would be limited by area practice and where they were clearly
differentiated from “laborers” and other craft workers. The use of helpers was
expected to be infrequent.

¹⁴¹ The Constructor, December 1980, p. 61.
¹⁴² Federal Register, May 28, 1982, pp. 23644 ff.
¹⁴³ Bureau of National Affairs, Daily Labor Report, July 29, 1996, pp. A9-A10.
¹⁴⁴ Federal Register, August 2, 1996, p. 40367; and Bureau of National Affairs, Daily Labor
Report, August 1, 1996, pp. A2-A3.
¹⁴⁵ Federal Register, December 30, 1996, p. 68646.
¹⁴⁶ Bureau of National Affairs, Daily Labor Report, August 4, 1997, pp. A10-A11.
¹⁴⁷ Federal Register, April 9, 1999, pp. 17442-17458.

Congress Takes Another Look
Whatever the immediate outcome of the helper question, the Department, it
appeared, had made a judgment. For the foreseeable future, no further administrative
involvement could be expected.
The Late Clinton Administration.Late in the 105^th Congress (1998),
Representative Charlie Norwood introduced legislation that would have created a
special category of workers (i.e., ‘helpers’) for Davis-Bacon purposes. No action,^th
however, was taken on the proposal. In the 106 Congress (1999), Mr. Norwood
introduced new helper legislation. On July 21, 1999, the Subcommittee on Oversight
and Investigations, Committee on Education and the Workforce, conducted a hearing
on the impact of the helper rules for job opportunities. The Subcommittee, however,
took no further action: the Norwood bill was not reported.
During the same period, Representative Anne Northup raised the helper issue
during consideration of appropriations for the Departments of Labor, Health and
Human Services, and Education. At Representative Northup’s request, language was
added during mark-up that would have denied funding “to implement, administer, or
enforce” the helper rule proposed by the Clinton Administration. However, as the
legislation progressed through the legislative process, the provision was dropped.
What impact its inclusion would have had may not have been entirely clear since, in
essence, the bill would have codified existing practice.
As the 106^th Congress was drawing to a close, DOL again took up the matter,
issuing a new final regulation governing the use of helpers. It was dated November
14, 2000, and was set to take effect 60 days after its publication in the Federal
Register — just hours prior to the end of the Clinton Administration. The regulation
provided that helpers were to be recognized as a “distinct classification ... only
where” the following conditions occur:
(i) The duties of the helper are clearly defined and distinct from those of any
other classification on the wage determination;
(ii) The use of such helpers is an established prevailing practice in the area; and
(iii) The helper is not employed as a trainee in an informal training program.
The work of a helper was not to be performed by any other classification of worker¹⁴⁸
“in the wage determination.”
The George W. Bush Administration. Another bill dealing with the issue
was introduced during the 107^th Congress but was not adopted. In the 108^th Congress
(May 2003), the helper issue was raised again by Representative Marsha Blackburn,
with Representatives Norwood and King (of Iowa). The proposal (again, the Helpers
Job Opportunity Act) mandated that helpers “of laborers and mechanics shall be
considered to be a separate classification.” But, the prospects were no better than

¹⁴⁸ Bureau of National Affairs, Daily Labor Review, November 20, 2000, pp. E1 forward.
For a more detailed discussion of this issue, see also CRS Report 96-228, Davis-Bacon:
Employment of Helpers on Federal Contract Construction, by William G. Whittaker.

with prior Congresses.¹⁴⁹ The bill was referred to the Committee on Education and
the Workforce and subsequently to the Subcommittee on Workforce Protections, but
no action was taken on the proposal.
On September 27, 2005 (the 109^th Congress), Representative Blackburn, with
Mr. Norwood as a co-sponsor, reintroduced the Helpers Job Opportunity Act (H.R.

3907). Again, the bill died in the Committee on Education and the Workforce.

The final regulation, dating from the Clinton Administration, has gone into
effect and, thus far, the Bush Administration has not revisited the issue. However,
this may not be the end of the process. On the one hand, the Department of Labor,
at its own discretion, could reevaluate the helper question and issue a new proposed
rule. Or, conversely, Congress could attempt to resolve the issue through new
legislation. Of course, it may be that the matter has been resolved and that nothing
further remains to be accomplished.

¹⁴⁹ See H.R. 2283 of the 108^th Congress.