U.S. Department of Labor 
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210
JUN 22 1992
MEMORANDUM NO. 163
TO: ALL CONTRACTING AGENCIES OF THE FEDERAL
GOVERNMENT AND TH DISTRICT OF COLUMBIA
FROM: KAREN R. KEESLING
Acting Administrator
SUBJECT: Revision of Davis-Bacon Regulations, 29 CFR Part 5
on December 4, 1990, the Department of Labor (DOL) published in
the Federal Register (55 FR 50148) its notice implementing
revised final Davis-Bacon regulations, 29 CFR Parts 1 and 5,
governing the use of semi-skilled "helpers" on Federal and
Federally-assisted construction projects subject to the Davis-
Bacon and Related Acts (DBRA). The final rule, published on
January 27, 1989 (54 FR 4234), became effective on February 4,
1991. All Agency Memorandum (AAM) No. 154, dated January 2,
1991, provided initial instructions for implementing these
regulatory changes.
Thereafter, on April 10, 1991, the Dire Emergency Supplemental
Appropriations Act of 1991, Pub. L. No. 102-27, 105 Stat. 130,
151 (1991), was enacted. Section 303 of this law prohibited DOL
from spending any funds to implement or administer the helper
regulations. After the end of fiscal year 1991 and the expir-
ation of continuing resolutions, a new appropriations act was
passed which did not contain the restrictive language. The
Solicitor of Labor thereafter advised that the spending prohi-
bition had expired, and that implementation of the helper regu-
lations was legally permissible. Accordingly, on January 29,
1992, AAM No. 161 notified agencies of this advice and instructed
that the revised contract clauses set forth at section 5.5 of
29 CFR Part 5 were to be incorporated in all contracts for which
bids were solicited or negotiations concluded on or after
January 29, 1992.
On April 21, 1992, the United States Court of Appeals for the
District of Columbia issued a decision that confirmed that the
1991 appropriations' spending prohibition had only temporary
effect. The court also upheld four challenged provisions of the
helper regulations, but invalidated the regulatory provision
setting a maximum allowable ratio of helpers to journeymen on
Federal construction projects subject to DBRA. Building &
Construction Trades Department, AFL-CIO v. Martin, No. 82-1631
(D.C. Cir. Apr. 21, 1992).












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Specifically, the court of appeals affirmed the district court's
decision upholding the regulatory provisions which provide that:
o helper rates will be issued in wage determinations for
localities where the use of helpers prevails, in accordance
with a formula for determining the circumstances in which a
helper classification prevails (29 CFR 1.7(d)); and,
o helper classifications can be added through the conformance
process to wage determinations where they prevail in the
locality (29 CFR 5.5(a)(1)(ii)(A)(1) and (4)).
The court also reaffirmed its previous decision upholding the
definition of a helper (29 CFR 5.2(n)(4)}.
In addition, the court of appeals invalidated the regulatory
provision (at 29 CFR 5.5(a)(4)(iv)) setting a maximum ratio of
two helpers to every three journeymen. In accordance with the
court's decision, section 5.5(a)(4)(iv) no longer has effect, and
a notice is being sent to the Federal Register to withdraw this
subsection from the Code of Federal Regulations.
Please ensure that the contract clauses at section 5.5(a)(4)(iv)
are at incorporated in contracts awarded after the date of this
Memorandum. Agencies are reminded of the need to make appropri-
ate changes in the procurement regulations (see especially 48 CFR
22.404-3, 52.222-6(b) and 52.222-9) and contract documents to
conform to the revised regulations. AAM Nos. 154 (January 2,
1991) and 181 (January 29, 1992) should be adhered to in all
other respects.
Where helper clauses are included in contracts, as provided in
AAM No. 161, helper classifications can be utilized whenever a
particular helper classification is included in a wage deter-
mination issued by DOL in accordance with 29 CFR 1.7(d), or such
an additional classification is obtained from DOL pursuant to the
conformance procedures in 29 CFR 5.5(a)(1)(ii). Any employee
listed on a payroll as a helper may be used in accordance with
the definition of “helper" set forth in 29 CFR 5.2(n)(4). Any
employee listed as a helper who is not employed in accordance
with these rules must be paid the applicable wage rate on the
wage determination for the classification of work actually
performed.
It is very important that you ensure that the actions specified
herein are taken in a timely and consistent manner in order to
both comply with the court order and achieve important regulatory
savings. It we can be of any assistance or answer your ques-
tions, please contact Dr. Alan Moss or his staff, who can be
reached at (2020 523-7531.