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GSA Real Property Leasing and Davis-Bacon
By david whittle on Friday, January 26, 2001 - 10:42 am:

If the GSA is leasing real property and a new building is being built strictly for Gov. use does the Davis-Bacon Act apply, is the Lessor required to pay the prevailing DB wage rates?

By carol elliott on Friday, January 26, 2001 - 12:14 pm:

If the building is being built for a Government purpose the Davis Bacon Act will probably apply.

Some of the cases you might review are: "In the Matter of Crown Point Indiana Outpatient Clinic", WAB Case No. 86-33 (June 26, 1987); "Building and Construction Trades Dept. V. Turnage", Civil Action No. 87-2827 (D.D.C 1987); and "In the Military Housing, Ft. Drum", WAB Case No. 85-16 (August 23, 1985). I don't have a web site for these cases, but I'm sure your legal office can locate them for you.

Based on these cases and my own experience, title of the property is a factor but not the only factor in determining whether DBA applies. In the cases sited above, the Government was not taking title. The Government was leasing the property. It was determined that DBA applied because the purpose of the construction was to meet a Government need, the Government provided detail specifications or approved the construction specs, and the lease terms were such that the Government paid for the construction over time.

On the flip side I have successfully argued that construction work being performed on a federally owned facility was not covered under DBA. The rationale was that the property was leased to a private entity, the government neither required nor approved the construction specs, and the government was not reimbursing the Lessor for the construction costs.

This can be a difficult issue and without looking at all the facts of your project it's hard to give a definite answer. When I ran into this issue, I looked at the legal and contract requirements, made a decision and moved on. Little did I know the political hornet's nest I had walked into. In addition to coordinating this with your legal office, I suggest you brief your management on the issues to make sure they understand your rationale and that you have their full support.