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2023 Documents The October 2023 regulations are being challenged and further reviewed in court. The Associated Builders and Contractors (ABC) and its Southeast Texas chapter submitted filings in the U.S. District Court for the Eastern District of Texas challenging the U.S. Department of Labor’s controversial final rule,Updating the Davis-Bacon and Related Acts Regulations, which applies to federal and federally assisted construction projects. The lawsuit challenges the legality of the regulations on several points, including the expansion of its application to certain surveying activities and personnel. Surveying is mentioned in paragraphs 35, 58, 91, and 96 with a detailed discussion of the surveying issue in paragraph 96. NSPS discussed this legal strategy with ABC and one of its counsels prior to the filing. Also, Rep. Lloyd Smucker (R-PA) introduced legislation to overturn implementation of the Biden Administration’s controversial new regulations implementing the Davis-Bacon Act. The resolution, H.J.Res.103, introduced on November 15 with 22 cosponsors, utilizes a law known as the Congressional Review Act to rescind the rules. Approval by the House and Senate, and a signature by President Biden, is required for the resolution to become law. NSPS is listed in the Congressional news release as a supporter of the resolution. New Davis-Bacon Act implementing regulations - Effective October 23, 2023 2022 Documents Department of Labor Davis Bacon Comments - May 16, 2022 Davis Bacon Comment Talking Points May 10, 2022 Davis Bacon Act Regulations Revision Town Hall Video Davis Bacon Act Regulations Revision - PDF and PPT Surveyor Says podcast - Episode 121 The Department of Labor has issued proposed rule changes that will include surveying under the Davis-Bacon Act, so we asked John Palatiello, NSPS Legislative Consultant, back on the podcast to discuss the issue. He shared the history of the Davis-Bacon Act and why including surveying under rules typically established for labor is a negative for the profession. John talks about how NSPS, our state affiliates, and our membership can help oppose these proposed changes so our profession will not be subject to these proposed rules. Biden Administrations Seeks to Reinstate Applying Davis-Bacon Act to Survey Crews The Department of Labor is on March 11, 2022 proposed a massive rewrite of regulations expanding the Davis Bacon Act, promoting a new standard to apply to members of survey crews as “laborers or mechanics”. See, in particular, page 129-130,. 2020 Documents Labor Department Rescinds AAM 212; Reverses Rule on Davis-Bacon for Survey Crews (12-18-20) All four recently published AAMs can be found at: https://beta.sam.gov/help/wage-determination-resources/all-agency-memos. The pdfs of each are also attached. They are:
NSPS Letter to Ranking Member Comer - September 8, 2020
2018 Documents
Design-Construction Coalition Letter in opposition to AAM-212 2017 Documents Small Business Administration (SBA) letter to the Secretary of Labor recommending repeal of AAM 212
October 2017 Taxpayer Coalition Letter In March, 2013, with no public notice, request for public comment, small business or economic analysis, or engagement with the private sector, the Department of Labor expanded the Davis Bacon Act.
The Department reversed more than 50 years of policy and practice and applied Davis-Bacon to surveying technicians. The 50+ year policy was articulated by then-Secretary Arthur Goldberg during the Kennedy Administration, which the current Labor Department has overturned. In addition to issuing AAM212, the Department of Labor sent a letter to the International Union of Operating Engineers further explaining its new policy. Here is a summary of the issue and background.
Congress held a hearing on the issue on June 18, 2013. National Society of Professional Surveyors (NSPS) Executive Director Curtis W. Sumner, LS, testified in opposition to the ruling. Here is Sumner's testimony.
NSPS has also asked the Labor Department to reverse its position. MAPPS supported the NSPS position in a letter entered into the House subcommittee hearing record, as was a letter by more than a dozen organizations and a letter by five design and construction organizations. Rep. Tim Walberg (R-MI), chairman of the Workforce Protections Subcommittee, criticized the Labor Department’s actions.
DoL has not met the deadline for documents in response to the Kline-Graves-Walberg letter. DoL has also failed to comply with the statutory deadline under the Freedom of Information Act in response to a FOIA request it got from Professional Surveyor Magazine for documents related to the Davis Bacon decision.
NSPS sent an August 20, 2013 letter to DoL in response to an August 16, 2013 meeting. The Labor Department still has not explained how it has complied with the Administrative Procedures Act, Paperwork Reduction Act, or Regulatory Flexibility Act.
Administrators of two key offices within the White House, were asked to investigate the process used by the Department of Labor to classify members of survey crews as “mechanics and laborers” under the Davis-Bacon Act. NSPS asked the the Office of Federal Procurement Policy (OFPP) and the Office of Information and Regulatory Affairs (OIRA) to review are the Administrative Procedures Act, Regulatory Flexibility Act, Paperwork Reduction Act, and Office of Federal Procurement Policy Act.
On October 31, 2013, U.S. Senators Lamar Alexander (R-TN) and Pat Roberts (R-KS), members of the Senate Committee on Health, Education, Labor and Pensions (HELP), sent a letter to the Secretary of Labor requesting documents related to DoL's new policy on Davis-Bacon and survey crews, and expressing concern for the new policy.
The Wage and Hour Division of the Department of Labor finally responded to NSPS in early December, further clarifying its new policy and narrowing the application of the Davis Bacon Act to survey crews.
 AAF President Douglas Holtz-Eakin, Sen. Barrasso and Curtis Sumner
NSPS presentation before Sen. Barrasso and AAF President Douglas Holtz-Eakin continues to reap dividends for additional exposure. Click Here
The chairman of the House Appropriations Subcommittee that funds the Department of Labor has asked for the release of information regarding the Department’s controversial ruling that survey crews are “laborers and mechanics’ under the federal prevailing wage law. Rep. Jack Kingston (R-GA), an Appropriations Committee “cardinal” or subcommittee chairman, wrote Secretary of Labor Thomas Perez on January 10, 2013 pointing out that numerous attempts to provide transparency on the department’s decision have been unheeded. The American Society of Civil Engineers (ASCE) recently adopted a policy statement that also opposes the Labor Department position. Labor Department responds to House Labor Appropriations Subcommittee Chairman, Rep. Jack Kingston (R-GA) (March 5, 2014) NSPS Praises Members of Congress Call for Labor Department to Revoke Davis-Bacon Policy News Flash (July 15, 2014) The U.S. Department of Labor has turned down a request from three committee and subcommittee chairmen of the U.S. House of Representatives to reverse a March 2013 policy that expanded application of the Davis-Bacon Act, classifying members of survey crews as “laborers and mechanics”. NSPS Executive Director Curtis Sumner, government affairs consultant John Palatiello and lobbyist John “JB” Byrd met with Labor Department officials on September 30 to seek a revision and narrowing of the new policy. (September 26, 2014) NSPS AAM 212 proposal to Mr. Michael Lazzeri, Assistant Administrator for Government Contracts (December 10, 2014) Response of Mr. Michael Lazzeri, US Department of Labor, Wage and Hour Division (December 2, 2015) Labor Department Q&A
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