U.S. Department of Labor 
Employment Standards Administration 
Wage and Hour Division
Washington. D.C 20210
JUL 24 1992
MEMORANDUM NO. 165
TO: ALL CONTRACTING AGENCIES OF THE FEDERAL
GOVERNMENT AND TU DISTRICT OF COLUMBIA
FROM: KAREN R. KEESLING
Acting Administrator
SUBJECT: Implementation of Revisions to the Davis-
Bacon Regulations, 29 CFR Parts 1 and 5,
Allowing Expanded Use of Helpers
This Memorandum supplements All Agency Memoranda Nos. 154, 161,
and 163, issued on January 2, 1991, January 29, 1992 and June 22,
1992, respectively. Those Memoranda described revisions in the
Davis-Bacon Regulations, 29 CFR Parts 1 and 5, to allow the ex-
panded use of helpers on contracts covered by the labor standards
requirements of the Davis-Bacon and related Acts (DBRA), noted
the effect of 1991 and 1992 Fiscal Year appropriation laws on
implementation of the revised regulations, and described the
effect of an April 21, 1992 ruling by the U.S. Court of Appeals
for the District of Columbia.
The purpose of this Memorandum is to advise agencies responsible
for the administration and enforcement of contracts covered by
the DBRA labor standards requirements of Department of Labor
(DOL) policies with respect to:
o Application of revisions to Davis-Bacon regulations, 29 CFR
Parts 1 and 5 to construction contracts; and
0 Procedures for satisfying the requirements of the labor
standards clause permitting classifications of laborers and
mechanics, including helpers, that are not listed in the
wage determination in a covered contract, to be added in
conformance with the contract wage determination.























 I. Application of Revisions to Davis-Bacon Regulations,
29 CFR Parts 1 and 5 to Construction Contracts
Awarded since February 4, 1991
Section 303 of the 1991 Dire Emergency Supplemental Appropria-
tions Act prohibited the use of Department of Labor appropriated
funds to implement or administer the revised "helper" regulations
published in the Federal Register on January 27, 1989 (54 FR
4234). The enactment of a new Appropriations Act for Fiscal Year
1992 on November 26, 1991, without any provision prohibiting
expenditure of funds to implement the "helper" regulations,
superseded the proscription in the 1991 Dire Emergency Supplemen-
tal Appropriations Act that had barred the Department from imple-
menting and administering the helper regulations.
All Agency Memorandum No. 161, issued on January 29, 1992,
directed that the revised contract clauses set forth at section
5.5 of 29 CFR Part 5 should be incorporated in all contracts for
which bids are solicited or negotiations concluded on or after
January 29, 1992.
On April 21, 1992, the U.S. Court of Appeals for the District of
Columbia invalidated section 5.5(a)(4)(iv), which provided a
limit on the number of helpers that can be utilized on the job
site of two helpers for every three journeymen. To comply with
the Court's ruling, All Agency Memorandum No. 163, issued on June
22, 1992, directed that section 5.5(a)(4)(iv) not be incorporated
in contracts awarded subsequent to its issuance.
Ongoing construction contracts for which bids were solicited or
negotiations concluded since February 4, 1991, that contain the
labor standards clauses in effect prior to that date, may be
amended to include the revised contract clauses at section
5.5(a)(1)(ii)(A). (Consistent with the U.S. Appeals Court ruling
of April 21, 1992, the contract clause at section 5.5(a)(4)(iv)
should be excluded when contracts are so amended.) The contract
clauses permitting the conformance of helpers where helpers
prevail will be applicable to such an amended contract from the
date of the modification. Additional classification requests for
helper classifications on such contracts may be considered only
where the contract has been modified to include the new clauses.
Consequently, any requests for helper classifications and wage
rates to be added to contract wage determinations in accordance
with the revised helper regulations must include a statement that
the helper clauses are incorporated in the contract, the contract
award date, the bid solicitation date or the date negotiations
were concluded (for example, after a Request for Proposals), and,
where applicable, the date the contract was modified to incor-
porate the revised clauses.
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Semi-skilled employees who performed the work of helpers -- as
that term is defined in the new regulations -- throughout their
employment on such a contract and who were paid the journeyman
wage rate solely because the helper classification was unavail-
able may be reclassified as helpers pursuant to an additional
classification request approved by the Department of Labor.
However, such individuals may be compensated at the helper wage
rates only from the date of the modification (or November 26,
1991, whichever is later), not retroactive to the first day they
performed helper duties on the contract. Contracting agencies
are reminded that any employee reclassified as a helper must have
met and must continue to meet the regulatory definition of a
helper at 29 CFR Part 5.2(n)(4). On the other hand, individuals
who were classified as journeymen and performed journeylevel work
on the contract cannot be reclassified as a helper and assigned
semi-skilled work in the same trade,
However, no contractors or subcontractors will be permitted to
benefit from the reduced wage scales by recapturing wages from
employees compensated at a higher rate prior to their reclassi-
fication. Any deduction from a helper's wages to recover the
difference between the helper rate and any higher rate previously -
paid will be viewed as an illegal deduction pursuant to Regula-
tions 29 CFR Part 3.
With respect to the few contracts entered into pursuant to invi-
tations for bid or negotiations concluded on or after February 4,
1991, but before November 26, 1991, that contained the revised
helper labor standards, the Department interprets the Congres-
sional prohibition as having the effect of precluding the imple-
mentation of the helper regulations during all of Fiscal Year
1991. Therefore, application of the new helper rules to open
contracts that already contained the revised clauses will be
effective beginning November 26, 1991, the date-of the new ap-
propriation law.
A classification of laborer or mechanic, including helpers, may
be employed on a DBRA project if the classification is listed on
the contract wage determination or added after award in accor-
dance with the applicable regulatory procedures. Helpers to a
particular journeylevel classification may be employed on a DBRA
prevailing wage project where:
(a) The specific helper classification and corresponding wage
rate is listed on the applicable contract wage determina-
tion; or
(b) The addition of the specific helper classification has
been approved pursuant to the conformance procedure set
forth in 29 CFR Part 5, section 5.5(a)(1)(ii).
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In determining whether an employee is a helper for purposes of
wage surveys and the conformance procedure, it is the definition
of "helper" at 29 CFR 5.2(n)(4) which controls, rather than the
job title utilized by the contractor.
Helpers will be listed on wage determinations based on new
surveys conducted to determine prevailing wages. Wage deter-
minations that result from prevailing wage surveys completed on
or after November 26, 1991, will list helper classifications
where they are found to prevail and data adequacy standards for
assuring reliability of the wage determinations are met. Wage
determinations based on the new surveys will specify the wage
rates that are determined to prevail for helpers, which may be
utilized in accordance with the definition in the regulations.
When, as a result of a prevailing wage survey, it is determined
that certain helpers do not prevail, an indication on the result-
ing wage determination will specify that those helpers do not
prevail and cannot be added by the "conformance" process de-
scribed below.
Where a majority rate is recognized as prevailing for the jour-
neyman, the practice of the contractors whose workers were paid
the majority rate will also be followed in determining whether
the use of helpers prevails.
II. Addition of Helpers after contract Award in
Conformance with Contract Wage Determinations
The Conformance Process in General
Where a contract wage determination does not list classifications
that are to be used on a project, contractors may request that
they be added and propose the wage rates they intend to pay the
employees they will use on the project in such classifications.
Such requests are subject to review by the contracting agency
and approval, modification, or denial by the Department of Labor.
The regulatory criteria for the approval of additional classifi-
cations and wage rates have been revised to accommodate the
expanded use of helpers on projects to which Davis-Bacon wage
determinations apply.
The contract clause set forth in Regulations, 29 CFR Part 5,
section 5.5(a)(1)(ii), requires the responsible agency contract-
ing officer to assure that any class of laborers or mechanics not
listed in a contract wave determination, including helpers, to be
employed under the contract, shall be classified in conformance
with the wage determination.
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In reviewing contractor requests for helper and other additional
classifications, the contracting officer/agency official should
consider whether the proposed additional classifications and wage
rates are in conformance with the contract wage determination.
Unlike the criteria established for conformance of traditional
classifications, the new rules permit approval of helper classi-
fications where the helper duties overlap with those of classifi-
cations already listed in a contract wage determination, provided
they meet the "helper" definition set forth in the regulations.
Like other classifications, the particular duties a helper may
perform are determined by area practice. Conformance requests
for classifications other than helpers will continue to be denied
if their duties are performed by a classification already in the
contract wage determination.
Prevailing Practice
The Regulations require that helpers may not be conformed unless
they prevail in an area. Determinations as to whether helper
classifications prevail in an area will be made by the Department
of Labor.
If an additional classification for a helper is requested for
a schedule of wage rates based on a survey conducted prior to
November 26, 1991, the Department of Labor will, if appropriate.
information is not already available, conduct a prevailing prac-
tice survey to determine whether helpers prevail. Appropriate
statistical techniques will be utilized to determine the extent
of data collection required to make a reliable determination.
If, based on such a prevailing practice survey, it is determined
that requested helpers do not prevail in the area for the rele-
vant type of construction, addition of the proposed helper to the
wage determination for that type of construction in the area will
be denied. (When such a determination has been made, it will
also be reflected on subsequent wage determinations for the given
type of construction in the area, so that contractors and con-
tracting officers will know that helpers may not be added to such
contract wage determinations.)
If, on the basis of a prevailing practice survey, it is deter-
mined that helpers to particular journeyman classifications go
prevail on the relevant type of construction in an area, such
helpers can be added at a wage rate in conformance with the con-
tract wage determination. (This will be noted on the relevant
wage determination.)
Conformable Wage Rates
For an additional classification to be conformable to a contract
wage determination, the proposed wage rate (including any bona
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fide fringe benefits) must bear a reasonable relationship to the
wage rates already listed in the wage determination.
Contracting agency review of contractor requests for additional
classifications and wage rates for helpers and other classifica-
tions should include consideration of whether this criterion is
met. If the proposed wage rate for an additional classification
does not bear a reasonable relationship to the wage rates in the
contract wage determination, it cannot be approved.
In evaluating whether proposed wage rates for additional clas-
sifications bear a reasonable relationship to the wage rates
contained in the contract wage determination, the following
guidelines will be applied:
(a) Generally, requests for additional classifications at
wage rates below the unskilled laborers' wage rate in the
applicable wage determination will not be approved. This
policy applies to helpers, as well as to other proposed
classifications.
(b) The addition of skilled craft classifications will not be
approved at wage rates below those already listed in the
applicable wage determination for other skilled crafts.
(c) In general, addition of a proposed helper wage rate will
not be approved at less than 60% of the related journeyman
wage rate. Current Population Survey data indicate that
helper rates, overall, are about 60% of journeyman rates.
Wage and Hour Review of Proposed Conformance Actions
All proposed additional classification/conformance actions must
be submitted to Wage and Hour for review. Wage and Hour may
approve, modify, or disapprove any proposed additional classifi-
cations.
In submitting proposed additional classifications and wage rates,
including requests for helpers, agency officials should provide
the following information:
(1) A statement that the required helper clauses are incorpo-
rated in the contract;
(2) The date invitations for bids were issued or the date
on which negotiations were concluded;
(3) The award date of the contract;
(4) Identification of the wage determination(s) incorporated
in the contract; and, if multiple wage schedules are in-
cluded in the contract, the county and type of construc-
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 tion applicable to the work on which the classification(s)
will be employed;
(5) For each helper classification, the craft it is to assist;
(6) Evidence that the affected employees (or their legal
representative) agree to the proposed classification(s)
and rate(s) or a statement that it is disputed; or if
the employees have not yet been selected, a statement
that the employees are not known;
(7) Signature(s) on the request showing contracting officer
and contractor/subcontractor agreement with the pro-
posed classification and rate, or a statement that it
is disputed;
(8) In the event that the contractor, the laborers or
mechanics to be employed in the classification or their
representatives, and the contracting officer do not
agree on the proposed classification and wage rate, the
contracting officer shall refer the views of all inter-
ested parties and his or her recommendation to the Wage
and Hour Administrator for a determination; and,
(9) The date(s) that ongoing contracts were modified to in-
clude the revised helper standards, where applicable.
Pursuant to longstanding practice prior to implementation of
the new regulations, for contracts which do not contain the new
helper clauses, and in all contracts entered into based on
invitations for bids issued or negotiations concluded prior to
February 4, 1991, helper classifications and other subclassifi-
cations can be added to wage determinations only where: the use
of helpers is an established prevailing practice; the duties are
clearly defined and distinct from those of the journeylevel
classification and from the laborers; and the term "helper" is
not synonymous with a trainee in an informal training program.
Questions regarding this memorandum may be addressed to
Philip Gloss, who can be reached at (202) 523-7455.
Further guidance will be issued in a fact sheet for all interes-
ted parties in the near future. In addition, guidance concerning
enforcement policies with regard to implementation of the regula-
tory provisions that allow the expanded use of helpers will be
provided in a future All Agency Memorandum.
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