local officers and employees as he may find necessary to assist in the administration of said sections and to prescribe rules and regulations with respect thereto. The Secretary shall appoint an administrative officer, and such attorneys and experts, and other employees with regard to existing laws applicable to the employment and compensation of officers and employees of the United States, as he may from time to time find necessary for the administration of sections 35 to 45 of this title. The Secretary of Labor or his authorized representatives shall have power to make investigations and findings as provided in sections 35 to 45 of this title, and prosecute any inquiry necessary to his functions in any part of the United States. The Secretary of Labor shall have authority from time to time to make, amend, and rescind such rules and regulations as may be necessary to carry out the provisions of sections 35 to 45 of this title. (June 30, 1936, ch. 881, § 4, 49 Stat. 2038.) § 39. Same; hearings by Secretary of Labor; witness fees; failure to obey order; punishment.

Upon his own motion or on application of any person affected by any ruling of any agency of the United States in relation to any proposal or contract involving any of the provisions of sections 35 to 45 of this title, and on complaint of a breach or violation of any representation or stipulation as provided in said sections, the Secretary of Labor, or an impartial representative designated by him, shall have the power to hold hearings and to issue orders requiring the attendance and testimony of witnesses and the production of evidence under oath. Witnesses shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. In case of contumacy, failure, or refusal of any person to obey such an order, any District Court of the United States or of any Territory or possession, or the United States District Court for the District of Columbia, within the jurisdiction of which the inquiry is carried on, or within the jurisdiction of which said person who is guilty of contumacy, failure, or refusal is found, or resides or transacts business, upon the application by the Secretary of Labor or representative designated by him, shall have jurisdiction to issue to such person an order requiring such person to appear before him or representative designated by him, to produce evidence if, as, and when so ordered, and to give testimony relating to the matter under investigation or in question; and any failure to obey such order of the court may be punished by said court as a contempt thereof; and shall make findings of fact after notice and hearing, which findings shall be conclusive upon all agencies of the United States, and if supported by the preponderance of the evidence, shall be conclusive in any court of the United States; and the Secretary of Labor or authorized representative shall have the power, and is authorized, to make such decisions, based upon findings of fact, as are deemed to be necessary to enforce the provisions of sections 35 to 45 of this title. (June 30, 1936, ch. 881, 85, 49 Stat. 2038; June 25, 1948, ch. 646, § 32 (b), 62 Stat. 991; May 24, 1949, ch. 139, § 127, 63 Stat. 107.)

§ 40. Same; exceptions; modification of contracts; variations; overtime; suspension of representations and stipulations. Upon a written finding by the head of the contracting agency or department that the inclusion in the proposal or contract of the rep

resentations or stipulations set forth in section 35 of this title will seriously impair the conduct of Government business, the Secretary of Labor shall make exceptions in specific cases or otherwise when justice or public interest will be served thereby. Upon the joint recommendation of the contracting agency and the contractor, the Secretary of Labor may modify the terms of an existing contract respecting minimum rates of pay and maximum hours of labor as he may find necessary and proper in the public interest or to prevent injustice and undue hardship. The Secretary of Labor may provide reasonable limitations and may make rules and regulations allowing reasonable variations, tolerances, and exemptions to and from any or all provisions of sections 35 to 45 of this title respecting minimum rates of pay and maximum hours of labor or the extent of the application of said sections to contractors, as hereinbefore described. Whenever the Secretary of Labor shall permit an increase in the maximum hours of labor stipulated in the contract, he shall set a rate of pay for any overtime, which rate shall be not less than one and one-half times the basic hourly rate received by any employee affected: Provided, That whenever in his judgment such course is in the public interest, the President is authorized to suspend any or all of the representations and stipulations contained in section 35 of this title. (June 30, 1936, ch. 881, § 6, 49 Stat. 2038; June 28, 1940, ch. 440, title I, § 13, 54 Stat. 681.)

§41. Same; "person" defined.

Whenever used in sections 35 to 45 of this title, the word "person" includes one or more individuals, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers. (June 30, 1936, ch. 881, § 7, 49 Stat. 2038.)

§ 42. Same; effect of sections 35 to 45 on other laws.

The provisions of sections 35 to 45 of this title shall not be construed to modify or amend Title III of the act entitled "An Act making appropriations for the Treasury and Post Office Departments for the fiscal year ending June 30, 1934, and for other purposes", approved May 3, 1933 (commonly known as the Buy American Act), nor shall the provisions of sections 35 to 45 of this title be construed to modify or amend sections 276a to 276a-5 of Title 40, nor the labor provisions of Title II of the National Industrial Recovery Act, approved June 16, 1933, as extended, or of section 7 of the Emergency Relief Appropriation Act, approved April 8, 1935; nor shall the provisions of sections 35 to 45 of this title be construed to modify or amend sections 744a to 744n of Title 18. (June 30, 1936, ch. 881, § 8, 49 Stat. 2039.)

§ 43. Same; sections 35 to 45 not applicable to certain contracts. Sections 35 to 45 of this title shall not apply to purchases of such materials, supplies, articles, or equipment as may usually be bought in the open market; nor shall they apply to perishables, including dairy, livestock and nursery products, or to agricultural or farm products processed for first sale by the original producers; nor to any contracts made by the Secretary of Agriculture for the purchase of agricultural commodities or the products thereof. Nothing in said sections shall be construed to apply to carriage of freight or personnel

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 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.

4

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.