ABC, Texas chapter seek federal court relief from Davis-Bacon rule rewrite

An Associated Builders and Contractors and the ABC Southeast Texas lawsuit asks the U.S. District Court for the Eastern District of Texas, Beaumont Division to vacate the Department of Labor’s Updating the Davis-Bacon and Related Acts Regulations (DBA) rule, implemented in October and applicable to federal or federally assisted construction projects. Plaintiffs challenge the new rule’s prevailing wage definition, wage survey determination methods, and broadening to workers previously beyond the Davis-Bacon work site boundary. Their counsel characterizes those actions as collectively contributing to “a higher, less representative prevailing wage, implemented and enforced in a discriminatory manner.”

“Far from ‘updating’ the DOL’s enforcement of the Davis-Bacon Act, the final rule returns to failed policies of the 1970s and unlawfully expands coverage of prevailing wage requirements onto new projects and industries, and increases its regulatory burden on small construction contractors working on federally funded contracts,” says ABC Vice President of Regulatory, Labor and State Affairs Ben Brubeck. “The rule forces ABC to take legal action to address its numerous illegal provisions and protect its members, the free market and taxpayers from the devastating impacts of this regulation.”

“Instead of instituting commonsense reforms to Davis-Bacon regulations to ensure accurate prevailing wage determinations while providing much-needed clarity to the regulated community, the rule makes it much more likely that the DOL will adopt union wage scales as the prevailing wage at a greater frequency than in current practice,” he adds. “The DBA already adopts union wage scales at improbable rates, considering just 11.7 percent of the construction industry is unionized. The erroneous, arbitrary and capricious changes to the implementation of the Davis-Bacon Act must be challenged to preserve fair and open competition on government construction projects, regardless of labor affiliation.”

In Capitol Hill testimony earlier this fall, Mario Burgos, chief strategy officer of Prairie Band LLC, Albuquerque, N.M. urged House members to rein in the DOL’s wage determination process and unclear DBA regulations. He detailed his efforts to comply with a byzantine process to determine prevailing wages on federal construction projects and said the recent rulemaking updating Davis-Bacon will only make compliance challenges worse, driving small contractors out of public works projects or even out of business. His testimony followed push back from ABC officials and individual members during comment and interim periods leading to the DOL’s issuance of a final rule in August, effective two months later. 

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