A Washington, D.C., appeals court this week upheld judgement that the CityCenterDC private construction project doesn’t fall under the requirements of the Davis-Bacon Act, which dictates government-determined wage rates for public projects.

Photo: Aker Imaging
Photo: Aker Imaging

Tuesday, Judge Brett Kavanaugh affirmed judgment of the U.S. District Court for the District of Columbia’s 2014 decision in District of Columbia v. Department of Labor (DOL). In that decision, Judge Amy Berman Jackson rejected the DOL’s ruling that the Davis-Bacon Act can be expanded to include privately funded and constructed projects such as CityCenterDC, granting summary judgment to the District of Columbia and private developer CCDC Office LLC.

CityCenterDC is a recently completed, privately occupied and maintained mix-use project of condominiums, apartments, offices and retail stores. Because it sits on District-owned land, the DOL’s Administrative Review concluded it constituted a “public work” within the meaning of the Davis-Bacon Act.

Judge Kavanaugh, however, ruled the project is not subject to the act because the District was not a party to the construction contracts for the project, and; CityCenterDC is not a “public work” since its construction was not publicly funded and it is not a government-owned or government-operated facility.

The Davis-Bacon Act applies to contractors and subcontractors “performing on federally funded or assisted contracts in excess of $2,000 for the construction, alteration, or repair of public buildings or public works,” according to the DOL’s website. It requires these contractors to pay their laborers employed under said contracts “no less than the locally prevailing wages and fringe benefits for corresponding work on similar projects in the area.”

Associated Builders and Contractors’ (ABC) general counsel Maury Baskin represented the plaintiff developer in the case and argued successfully to the district and appeals courts. ABC vice president of regulatory, labor and state affairs Ben Brubeck says the District would’ve incurred an estimated $20 million in costs had the decision gone the other way.

TSI Exterior Wall Systems installed the aluminum-framed curtainwall and storefront, as well as the aluminum panels and sunshades, for the project. Thomas Cornellier, chief financial officer of TSI, says since TSI is a union company and union wages generally cover the minimum level of Davis-Bacon, it wouldn’t have been affected.

According to the federal government’s wage determination database, a glazier on a public construction project in D.C. must make a minimum of $24.77 on contracts $2 million and under and at least $28.61 on contracts over $2 million. An ornamental iron worker requires a minimum rate of $30.65 an hour.

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