Is your municipality working on a federally funded public building or infrastructure project, or planning to in the future? If so, the Davis-Bacon Act applies to your project. Updated Davis-Bacon regulations became effective on October 23, 2023.

What Is the Davis-Bacon Act?

The Davis-Bacon Act requires contractors and subcontractors working on federally funded projects that cost more than $2,000 to pay certain workers the “prevailing” wage. Davis-Bacon requirements may be extended to federal financial assistance programs by the terms of other statutes (collectively referred to as Davis-Bacon and Related Acts). For instance, the Contract Work Hours and Safety Standards Act is a Related Act that requires overtime pay to employees on most Davis-Bacon Act covered contracts.

The DBA applies to work:

• on public buildings or public works (for example, a town office or town garage building with USDA Rural Development grants or loans, or water, wastewater, or transportation project with federal funding).
• involving construction, prosecution, completion, or repair.
• performed at the site of the work.

Davis-Bacon Act requirements apply to:

• laborers and mechanics.
• people who guard property (ex. watchperson or guards) (under certain conditions).
• working foreperson (under certain conditions).

The US Environmental Protection Agency's Davis Bacon Act Overview summarizes the requirements. This overview was published prior to the updated regulation.

What Has Changed?

The DOL worked to streamline and standardize Davis-Bacon compliance, but contractors and contracting agencies, such as municipalities, will carry more risk. The DOL summarized the changes in a comparison chart. Below are the main changes.

Prevailing Wages

• The methods for how the DOL determines prevailing wages and whether payment of fringe benefits prevails over not paying benefits have both changed. This may have changed the wage or benefit rate for your project.
• The updates allow DOL to define a wage rate for multi-county projects (“areas”) and geographic subdivisions, such as state highway districts, not just for counties. Mixing rural and metropolitan county data is no longer banned.

Wage Determinations

• Wage determinations for substantial activities must be incorporated into the Request for Bids and the awarded contract.
• Wage determinations must be updated after a contract is awarded if the contract’s construction scope of work or its period of performance changes, or if a new subcontract is signed. Contracts not tied to completion of a specific project (retainer contracts, pre-qualified consultant contracts, etc.) must have wage determinations updated annually.

Definitions

The updated regulations clarify existing definitions and define terms that previously did not have definitions.

• Agency was clarified to include state and local agencies or other entities that provide assistance for Davis-Bacon projects.
• Building and work were modernized to include energy generation, broadband, and electric vehicle charger installations.
• Construction, completion, or repair includes demolition work and future construction on a demolition site if that construction will be subject to Davis-Bacon.
• There are new definitions for contractor, subcontractor, and prime contractor.
• Site of work has a revised definition that expands its scope.
• Flaggers are covered under Davis-Bacon if they are associated with the construction project. They do not have to be physically on the construction site.
• Material suppliers are not considered contractors for Davis-Bacon purposes. Contractor workers who move materials within a site or off site may be covered.
• Davis-Bacon applies to truck drivers employed by contractors and subcontractors when they are engaged in certain activities.
• Surveyors are considered laborers or mechanics in certain circumstances, and therefore are covered by Davis-Bacon.

Compliance

Record Keeping – Contractors and subcontractors are required to keep certain documentation to prove they tried to comply with Davis-Bacon; to maintain a list of workers with telephone numbers and email addresses; and to retain all documents for at least three years after the work on the prime contract is completed. They also must certify payroll (by signature) and submit it on a weekly basis to the contracting agency. The contracting agency (you!) must retain these records too, and you are responsible for ensuring that the signature on the certified payroll is valid.

Contracting – Contractors and upper-tier contractors now may be liable for lower-tier subcontractor violations. This means they are required to pay back wages on behalf of their lower-tier subcontractors and may be subject to debarment for subcontractor violations. Intent doesn’t matter. Prime contractors must follow up and ensure compliance. Upper-tier subcontractors must have some degree of intent to incur liability.

Contract clauses must be inserted in full. Anti-retaliation provisions are included in the contract clauses and include remedies.

Fringe Benefits – Fringe benefit contributions must be annualized, and an hourly equivalent rate must be calculated if a contractor’s worker performs work on both Davis-Bacon and non-Davis-Bacon projects. There are some exceptions to annualization calculations, and they have nuances!

Apprenticeships – Specific requirements must be met for a contractor to claim a fringe benefit credit for the costs of an apprenticeship program.

Enforcement –

• Interest will be due on back wages, calculated per an IRS standard, and compounded daily. Back wages and interest can be withheld from the prime contractor’s other federal contracts.
• Certain Davis-Bacon requirements have been aligned with requirements of related acts (e.g., one standard for debarment, its mandatory period, etc.).
• If wage determinations and contract clauses are missing from executed (signed) contracts, they must be incorporated retroactively. This may require an increase in the contract amount for cover wages even if the contract has closed.

What Should Municipalities Do Now?

Review your Davis-Bacon compliance program.

• Are the required contract clauses in all contracts subject to Davis-Bacon?
• Do you have a mechanism or procedure to ensure contractors and subcontractors are following Davis-Bacon requirements?
• Are you collecting records (including the newly required records) and certified payrolls from your contractors? How do you ensure that the certification signature is valid?
• Do you have a system to verify Davis-Bacon compliance with your contractors and subcontractors?
• Do you have any project wage determinations that are nearing expiration?

Conduct a risk assessment of your Davis-Bacon compliance program. Even if your “program” is informal, take the time to identify gaps and create controls to close them.

Revisit training. Do you have clear guidance for contractors and subcontractors to comply with Davis-Bacon? Is your staff receiving regular training on Davis-Bacon compliance?

Need Resources?

To learn more about the updated Davis-Bacon and related acts regulations, visit https://www.dol.gov/agencies/whd/government-contracts/construction/. The webpage includes a Small Entity Compliance Guide that is useful for understanding the updates.

Need current Davis-Bacon Wages? Our Project Management Tip of the Week includes our Guide to Obtaining Davis-Bacon Wage Determinations.

Email flood recovery or FEMA PA program questions to: ADM.2023floods@Vermont.gov

For help with debris removal, call Vermont Emergency Management at 1-800-347-0488.

We've consolidated previously released debris information here, so you have current information. New information added as of October 12, 2023 appears in red below.

During the response and recovery from a flood event, municipalities are responsible for debris management.

As the July 2023 flood event has evolved, the State now can assist municipalities with debris removal on both public and private property. For help with debris removal on public or private property, call Vermont Emergency Management at 1-800-347-0488.

You can click on one of these topics to jump to that information: Debris and FEMA PA | Debris Blocking Municipal Infrastructure | Debris in and along Rivers and Streams | Residential and Business Flood Debris | Temporary Debris Collection Sites

Debris and FEMA Public Assistance

FEMA Public Assistance (PA) covers debris clearance, removal, and disposal operations by State and local governments, Indian tribes, and certain CRITICAL private nonprofit organizations.

At least one of the following must apply:

• Removal eliminates immediate threats to human lives, public health and safety;
• Removal eliminates immediate threats of significant damage to improved public property; and/or
• Removal ensures economic recovery of the affected areas to the benefit of the community-at-large. 

Debris located on public property and rights-of-way is eligible. Debris on private property usually is not eligible under the FEMA Public Assistance (PA) program, although debris from private property can be moved out to the right of way on a determined date by the municipality for removal by the municipality. Vermont used this strategy early in the flood response.  When debris on private property is so widespread that it threatens public health and safety or economic recovery of a community, FEMA may provide PA funding for debris removal from private property. This was the case for the July 20223 floods, and the Governor requested and was approved for FEMA assistance. The State now can assist with debris removal on both public and private property.

• Debris type should be separated. Public Assistance debris can include downed trees, sand, building wreckage, and damaged property. 
• Before picking up debris, note the GPS location of debris pick up and disposal (required!) and take a photograph if you can.
• If you hire a contractor to pick up your debris, it must be cost reasonable and procured. You must have a debris monitor to ensure the contractor is picking up what they are charging you for.  A monitor can be a current town employee.
• Obtain appropriate Federal, State and local permits.
• Dispose of debris at proper landfills/locations.

Frequently Asked Questions and information about debris contract requirements, separation of debris types, and debris removal monitoring is available in a VEM email sent on July 14, 2023, Debris Guidance and FEMA Eligibility.

Vermont Emergency Management's Debris Management webpage provides details to help you maintain eligibility for FEMA Public Assistance for debris-related costs. The webpage also describes how to utilize the State's debris management contractors. You do not need to do this! Contact Vermont Emergency Management at 1-800-347-0488. The State is assisting municipalities with debris removal, and it can remove debris on both public and private lands. The State will use its contractors or staff, and the State will take responsibility for monitoring!

Debris Blocking Municipal Infrastructure

The State currently is assessing the flood related impact on local bridges, large culverts, drainage intakes, and stormwater systems. This will help them better understand where challenges exist and where State resources can best be utilized. Please consider answering a few quick questions using this short online form. Please respond to the survey whether or not you need assistance. Ruling out where assistance isn't needed is as important as knowing where assistance is needed!

Debris in and along Rivers and Streams

After a Flood - River and Stream Debris Management is an easy-to-read, two-page guide to managing debris in and along rivers and streams. It was updated by the Vermont Agency of Natural Resources on 9/1/2023.

A brief summary:

• Report all debris information to Vermont Emergency Management at 1-800-347-0488. The State may help with removal and disposal.
• Human-made debris, such as appliances, furniture, tires, or construction materials, may be removed without restrictions. It must be disposed of or recycled at a solid waste management facility.
• Natural debris left in the river after a flood, such as trees, large rocks, excess gravel, or excess sediment, cannot be removed without review by the Vermont Department of Environmental Conservation. This includes areas around culverts and bridges. Use the online form to contact the Rivers Management Program or call 802-828-1115.
• Natural debris left on land after a flood may be removed by property owners without restrictions. This material is a low priority for removal by the State.
• Avoid comingling natural and human-made debris. They need to be separated and managed separately. Vegetative debris can be composted and placed outside the river or stream.

If you still have debris in and alongside rivers and streams as of 10/12/2023, including vegetative debris (e.g., trees and branches caught up against bridge abutments), as well as gravel and sediment which are choking the stream channel and creating potential for further flooding of infrastructure during a future storm, and you want to remove it:

• Consult with your Agency of Natural Resources River Engineer. Use this online form to contact your Rivers Management Program or call 802-828-1115. If the River Engineer concurs with your proposed course of action for managing the debris in question, they can assist you in finding a quick application for Municipally Authorized Emergency Protective Measures.

• Notify your FEMA Program Delivery Manager of your intention to undertake additional debris management. Note that the debris management activity must be listed on your Damage Inventory, due to FEMA within 60 days after the date of your Recovery Scoping Meeting. Most DR4720 applicants have Damage Inventory deadlines coming up in late October, with the earliest ones due 10/21/23.

• FEMA debris eligibility is based on policy guidance in the FEMA Public Assistance Program and Policy Guide. 

Find current information from VEM about FEMA eligibility for management of river debris.

The period of performance for FEMA-eligible debris management is 6 months from the start of the incident period (in this case, January 7, 2024), but it can easily be extended for an additional six months by submitting an Extension Request to Vermont Public Assistance Officer Kim Canarecci (kim.canarecci@vermont.gov) with copy to ADM.2023floods@vermont.gov. By requesting an extension, you can maintain the ability to conduct FEMA-eligible debris management operations into spring 2024.

Alternative to FEMA PA: If a debris project is not eligible for FEMA Public Assistance, the NRCS Emergency Watershed Protection (EWP) Program covers 75% of the cost to remove debris and/or stabilize streambanks that pose an imminent threat. These projects require government sponsorship. The Vermont Agency of Natural Resouces will sponsor or co-sponsor all EWP projects. It may request that the municipality or other governmental organization play a role in the project. Contact John Schmeltzer, DEC Deputy Director, at 802-249-5620 to discuss potential projects. Remember, municipalities can use agreements to pass match and other responsibilities on to the private property owner!

Residential and Business Flood Debris

As of 10/12/2023, all municipal collections of debris from flooded buildings should be completed.

If your residents have flood debris in your municipality's right of way (ROW) and you need help removing it, the State of Vermont (SOV) can help; the expense for this effort will be covered by the State of Vermont. To have this debris collected, call Vermont Emergency Management at 1-800-347-0488. The State can assist with debris management on both public and private lands.

Temporary Debris Collection Sites

Due to the July 2023 flood, municipalities are allowed to set up temporary collection sites for flood debris materials. Municipalities must separate materials to protect solid waste workers and human health and the environment.

Municipalities are required to notify the Vermont Solid Waste Program (Dennis Fekert, dennis.fekert@vermont.gov) of the location of a temporary flood debris collection site and to specify what and how materials will be collected. Municipalities also must communicate with Dennis again on what date the materials were transferred to a proper management facility. To receive FEMA reimbursement, municipalities must record and save the addresses of locations where the material originated from and provide records for collection and processing costs.

The Agency of Natural Resources published Guidance for Municipalities that want to establish a temporary debris collection site.