Mmm – Davis Bacon

The Widget

Court: D.C. Circuit
Judge: Rogers
Subject: Government Contracts
Tone: Intermittently empathetic
Importance: 5.0

After a holiday that is so very much about food, it is fitting that we return with a case about Bacon! Okay, so it’s Davis Bacon. But still!

Davis Bacon is a federal statute governing what contractors must pay workers on federal construction projects. This case, Abhe & Svoboda, Inc. v. Chao, D.C. Cir. No. 06-5305, demonstrates that things get complicated very quickly.

The contractor on a bridge repainting project determined that it would pay its workers a mix of wages based on prevailing rates for painters, laborers, and carpenters. Union laborers and carpenters make less than painters. When the contractor submitted its bid, the Connecticut Department of Transportation, which was running bidding on the project, didn’t say that the contractor had to pay painters' wages. As the Court says, “the Department might have provided more explicit guidance.” But the Court still dismisses the contractor’s claim.

There’s a lot going on here that the opinion doesn’t quite address. This case isn’t an appeal of the Department of Labor’s determination that the contractor had to pay painters’ wages. Why the contractor didn’t directly appeal that determination is not clear. Also: how did the Department get interested in this contractor in the first place? Did the union representing Connecticut painters have anything to do with that?* If so, why did the Department focus on this particular contractor, given that the contractor had made its determination based on information it had received from other contractors?

More fundamentally: do we want labor unions controlling what people get paid on public construction projects? Because they do now. If you’re interested, there are good arguments for the status quo and against it (scroll for a bit and you’ll find it).

*You think?