by vessel, airplane, bus, truck, express, or railway line where published tariff rates are in effect or to common carriers subject to the Communications Act of 1934. (June 30, 1936, ch. 881, § 9, 49 Stat. 2039.)

§43a. Applicability of Administrative Procedure Act; wage determinations; administrative review; judicial review.

(a) Notwithstanding any provision of section 1003 of Title 5, sections 1001 to 1011 of Title 5 shall be applicable in the administration of sections 35 to 39 and 41 to 43 of this title.

(b) All wage determinations under section 35 (b) of this title shall be made on the record after opportunity for a hearing. Review of any such wage determination, or of the applicability of any such wage determination, may be had within ninety days after such determination is made in the manner provided in section 1009 of Title 5 by any person adversely affected or aggrieved thereby, who shall be deemed to include any manufacturer of, or regular dealer in, materials, supplies, articles or equipment purchased or to be purchased by the Government from any source, who is in any industry to which such wage determination is applicable.

(c) Notwithstanding the inclusion of any stipulations required by any provision of sections 35 to 45 of this title in any contract subject to said sections, any interested person shall have the right of judicial review of any legal question which might otherwise be raised, including, but not limited to, wage determinations and the interpretation of the terms "locality", "regular dealer", "manufacturer", and "open market". (June 30, 1936, ch. 881, § 10, as added June 30, 1952, ch. 530, title III, § 301, 66 Stat. 308.)

§ 44. Same; separability of provisions.

If any provision of sections 35 to 45 of this title, or the application thereof to any persons or circumstances, is held invalid, the remainder of said sections, and the application of such provision to other persons or circumstances, shall not be affected thereby. (June 30, 1936, ch. 881, § 11, formerly § 10, 49 Stat. 2039, renumbered June 30, 1952, ch. 530, title III, § 301, 66 Stat. 308.)

§ 45. Same; effective date; exception as to representations with respect to minimum wages.

Sections 35 to 45 of this title shall apply to all contracts entered into pursuant to invitations for bids issued on or after ninety days from June 30, 1936: Provided, however, That the provisions requiring the inclusion of representations with respect to minimum wages shall apply only to purchases or contracts relating to such industries as have been the subject matter of a determination by the Secretary of Labor. (June 30, 1936, ch. 881, § 12, formerly § 11, 49 Stat. 2039, renumbered June 30, 1952, ch. 530, title III, § 301, 66 Stat. 308.)

75-623 O 74 pt. 28

DAVIS-BACON ACT

40 U.S.C. 276a-276a-5

Summary and Description

This act covers direct Federal construction, alteration, or repair of public buildings or public works, including painting and decorating, where the contract is more than $2,000, and applies to all agencies of the Federal Government and the District of Columbia that directly make construction contracts.

The Davis-Bacon and related Acts provide for minimum wages on construction work which shall be based upon the wages determined by the Secretary of Labor to be prevailing for the corresponding classes of workers on similar construction in the locality in which the work is to be performed.

These acts also provide for the determination of prevailing fringe benefits. These include medical care, pensions, unemployment benefits, life insurance, disability and sickness insurance, vacation and holiday pay, and costs of apprenticeship.

Money may be withheld from the contractor under the Davis-Bacon and related acts to pay underpaid workers. An employee who believes he is underpaid should complain to the contracting agency or to the Department of Labor. If an investigation confirms the underpayment, money is withheld from the contractor and the contractor is asked to make restitution. If the contractor refuses, funds withheld under the Davis-Bacon Act (but not under the related Acts) are forwarded to the Comptroller General where the employee may file a claim for the wages. Under the related acts the sponsoring agency processes the disbursement to employees.

If enough money has not been withheld to cover all underpayments to laborers or mechanics, a worker who does not receive all that is due him has the right to sue the contractor and the sureties on his bond under the Miller Act (see next page). It is no defense for the contractor that the worker has accepted or agreed to accept wages at rates less than the rates determined by the Secretary, or has refunded any of the wages voluntarily.

The laws listed herein, among others, extend the Davis-Bacon Act to construction work, based on wage determinations by the Secretary of Labor : Federal-Aid Highway Act of 1956; United States Housing Act of 1937: Housing Act of 1949, Housing Act of 1950 (College Housing); Housing Act of 1959 (Housing for Elderly); National Housing Act (FHA); School Survey and Construction Act; Hospital Survey and Construction Act; Federal Airport Act; Federal Civil Defense Act of 1950; Federal Water Pollution Control Act; Delaware River Basin Compact; Health Professions Educational Assistance Act of 1963; Higher Education Facilities Act of 1963; Vocational Education Act of 1963; Mental Retardation Facilities and Community Mental Health Centers Construction Act of 1963; Airport and Airways Development Act of 1970; Postal Reorganization Act of 1970; National Foundation on the Arts and Humanities Act; Clean Waters Restoration Act of 1966; Assistance to Local Educational Agencies for Education of Children of Low-Income Families; School Construction in Areas Affected by Federal Activities; Model Secondary School for the Deaf; Partnership for Health Amendments; Medical Library Assistance Extension Act; Health Research Facilities Act; Nurse Training Act; Demonstration Cities and Metropolitan Development Act; Air Quality Act; High Speed Ground Transportation Act; Urban Mass Transportation Act; Alcoholic and Narcotics Rehabilitation Amendments; Juvenile Delinquency Prevention and Control Act; Vocational Rehabilitation Act Amendments of 1968; Vocational Education Act of 1968; and Economic Opportunity Act of 1964.

WAGE RATES INCORPORATED IN CONTRACTS

The wage rates determined by the Secretary of Labor under the laws for each class of laborer or mechanic are made a part of the contract specifications such rates are minimum rates and the contractor may have to pay higher rates (at no increase in the contract price) if economic conditions so require. The schedule of wage rates determined by the Secretary of Labor must be posted by the contractor on the construction site and all laborers and mechanics working at the site must be paid their wages in full, without any unlawful deductions, at least once each week.

NATIONAL EMERGENCY

The President is authorized, in the event of a National Emergency, to suspend the provisions of the Davis-Bacon Act.

ENFORCEMENT

Enforcement of the laws is the duty of the Federal agency that makes the contract or furnishes Federal aid for the project. Under Reorganization Plan No. 14 of 1950, the Department of Labor has the legal duty to see that there is a coordinated and consistent enforcement of these laws by the responsible Federal agencies. Labor Department regulations provide what the contractors, subcontractors, and Federal agencies have to do.

PENALTIES

Regulations, Part 5, issued by the Secretary of Labor (29 CFR secs. 5.1-5.12a) provide that if the contractor or subcontractor fails to live up to any one of the contract provisions under the law, he has broken the contract and it may be cancelled and the work given to another contractor for completion. In addition, if a contractor has failed to pay required wages under these laws, the Federal Government may withhold or have withheld the full amount of any back wages due, from money that would otherwise be made available for payments to the contractor. Also, on written notice further payments or guarantees of funds may be suspended until violations have been corrected.

Contractors and subcontractors who disregard their obligations under any of these laws may be barred for a period of 3 years from receiving any further contracts to which the laws apply.

Miller Act

Act of Aug. 24, 1935, as amended, 40 U.S.C. 270 et seq.

PERSONS AND EMPLOYMENTS COVERED

The Miller Act applies to every contract of over $2,000 for the construction, alteration, or repair of any public building or public work of the United States and provides that, before any contract covered by its provisions is awarded, the contractor must execute a payment bond with a surety or sureties to protect the wages of all persons supplying labor.

This law, while not a prevailing wage law or overtime pay law, is particularly important to laborers and mechanics who work on construction covered by the Davis-Bacon Act-that is, on construction contracts made directly by the Federal Government. Although the law does not apply to Federal-aid projects but only to direct Federal contracts, it is usual for Federal agencies administering grant-in-aid, loan, mortgage guarantee, and similar Federal-aid programs to require by regulation that contractors on construction under these programs execute a performance bond. Generally, the term of such bonds extends to 1 year after completion of the project.

RIGHT TO SUE

The Miller Act gives the worker a right to sue on the contractor's bond if he does not receive payment in full within 90 days after the day on which the last labor was performed. If the worker was employed by a subcontractor, he can sue the prime contractor and sureties on the bond for his unpaid wages, if he first gives written notice to the prime contractor within 90 days after the last labor was performed. This notice must be sent by registered mail, postage prepaid, in an envelope addressed to the contractor at any place he maintains an office or conducts his business; or it may be served in any other way that the U.S. marshal or the Federal district court for the district where the job is located is authorized to serve a summons.

TIME AND MANNER FOR BRINGING SUIT

Suits to recover under the Miller Act must be commenced with 1 year after the date of final settlement of the contract and must be brought in the name of the United States, for the use of the person suing, in the U.S. district court in any district in which the contract was to be performed and executed. Suit is brought and prosecuted by the worker's own attorney.

Text of Act

(Section Nos. refer to U.S. Code)

§ 276a. Rate of wages for laborers and mechanics.

(a) The advertised specifications for every contract in excess of $2,000, to which the United States or the District of Columbia is a party, for construction, alteration, and/or repair, including painting and decorating, of public buildings or public works of the United States or the District of Columbia within the geographical limits of the States of the Union, or the District of Columbia, and which requires or involves the employment of mechanics and/or laborers shall contain a provision stating the minimum wages to be paid various classes of laborers and mechanics which shall be based upon the wages that will be determined by the Secretary of Labor to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the city, town, village, or other civil subdivision of the State, in which the work is to be performed, or in the District of Columbia if the work is to be performed there; and every contract based upon these specifications shall contain