July 16, 2020 Public Contract Law Journal

We Still Don't Know What a "Public Building or Work" Is, and When Does the Government Join the Party?

by Jessica W. Tucker

Jessica W. Tucker is a J.D. candidate for the year 2020 at The George Washington University Law School and an Articles Editor on the Public Contract Law Journal. She would like to thank James W. Tucker, Jr. and Faye Cook Tucker for supporting her throughout the writing process, and Dylan J. Hays for his unwavering partnership and love as she carried their first child, James “Hays” Wilson Tucker, IV, during the publishing process. Lastly, she sends a very special thank you to her dog, Molly, for the never-ending encouragement and unlimited cuddles.

I.  Introduction

It seems logical to want the same pay for performing the same job in the same place. That is why the Davis-Bacon Act was created.1 However, the well-meaning Act contained ambiguous terms that left room for confusion that continually gets in the way of construction workers earning the money that they deserve. To make matters worse, a recent court decision not only failed to clarify any ambiguities within the Act but went so far as to erase any progress made by prior decisions.2

The government conceived the Davis-Bacon Act in response to concerns regarding the financial needs of construction workers during the Great Depression; however, its loosely defined terms have made it a source of confusion in the world of government procurement since its enactment in the 1930s.3 The context in which the Davis-Bacon Act was enacted is important for a complete understanding of the goals that the drafters had in mind. It is those goals that should be re-examined when establishing clarification that will control how the Act is applied moving forward.

The Act has four main requirements, and each requirement must be met to trigger the Act’s coverage of a contract.4 However, with vague, partial, or no definitions at all for specific terms within those requirements, the particular application of the Davis-Bacon Act to any specific contract can be hard to determine. The first requirement is that the contract contract must be for an amount of $2,000 or more.5 The second is that the contract must be a construction contract.6 The third is that the government must be a party to the contract.7 Finally, the fourth is that the contract must be for the construction of a public building or work.8

Although all of the requirements will be briefly discussed, this article will focus mainly on the last two requirements: the requirement that the government must be a party to the contract and the requirement that the construction contract must be for a public building or work.9 This is because those two requirements have been the most confusing and hotly debated in recent history. A recent controversy arising out of the meaning of those two requirements will be discussed with heavy reference to the District of Columbia v. Department of Labor case, given that it addresses those two requirements specifically.10

A single, reliable definition for the term “public building or work” must be established in order to avoid future confusion and debate over whether or not a privately funded work that greatly benefits the public as a whole meets the requirement of being a “public building or work” for the purposes of paying construction workers the prevailing wage rate. There has not been a single, consistent definition for the phrase thus far. Further, a clear and comprehensive route for determining whether or not the government was actually a party to the contract at issue, regardless of whether or not the government is a signed party to the contract, must be established to prevent situations where the government is able to avoid triggering the Davis-Bacon Act by directing and requiring the formation of construction contracts but remaining an unsigned party to the contract itself.

This Note offers a short, but potentially effective, two-part solution that could put an end to further disputes over when the government should be considered a party to a contract as well as how to determine whether or not   a contract is actually for the construction of a “public work.” Both parts of this solution aim to accomplish the goals that the original drafters of the Davis-Bacon Act had in mind and provide more uniformity and predictability to the application of the Act going forward. This solution will be implemented by amending the Act to include precise definitions and guidance.

This solution will suggest that a fair analysis of the government’s role in the existence and formation of a contract is more important that whether or not the government is literally a signed party to the contract. It will also suggest that one concise and consistent definition, from Black’s Law Dictionary, should be used to define the meaning of a public building or work.

Premium Content For:
  • Public Contract Law Section
Join - Now