DOJ Has Agreed Not to Oppose Entry of Judgment On Three Specific Biden-Era Davis-Bacon Act Rules Involving Materialmen, Truckers, and the Application of the Christian Doctrine.
"We recognized, once and for all, that a government big enough to give you everything you want is big enough to take away everything you've got."
—Ronald Reagan
In the past, we blogged repeatedly about the Biden-Administration’s Davis-Bacon Act (“DBA”) regulatory initiatives. See, e.g., https://www.awrcounsel.com/blog/2023/12/13/davis-bacon-when-will-federal-contracts-catch-up-with-dols-new-regulations?rq=Davis%20Bacon;
https://www.awrcounsel.com/blog/2023/11/30/application-of-the-davis-bacon-act-by-operation-of-law-is-here; and https://www.awrcounsel.com/blog/2023/9/11/who-will-be-the-bag-holder-the-tpas-or-the-employers-for-the-admin-fees-dol-recently-disallowed-for-davis-bacon-act-and-maybe-sca-hampw-plans?rq=Davis%20Bacon.
After the Biden Administration finalized its DBA”)rule changes in August 2023, the Associated General Contractors of America (“AGC”) predictably went to court to challenge portions of the updated rulemaking. See AGC v. US Department of Labor, Civ. Action # 5:23-ev-272 filed in the Northern District of Texas, a very friendly forum for opponents of government regulations. Plaintiffs challenged the new rules and focused particularly on three parts: (1) a provision addressing an exception for material suppliers; (2) a provision addressing the statute’s application to truck drivers; and (3) a provision addressing the so-called Christian Doctrine application of the DBA to certain contracts that omit the mandatory DBA clauses. The Court subsequently granted a preliminary injunction concluding that the plaintiffs were likely to succeed on the merits of their challenge. Of the three challenges, the most widely material one was the Christian Doctrine application, where the Court determined that the Department of Labor (“DOL”) lacked statutory authority to treat contracts as if they included DBA requirements even if those requirements were omitted by the contracting agency.
Following the entry of the preliminary injunction, the Government appealed and the parties also submitted cross motions for summary judgment. But before any judicial decision was made, there was an election and then transfer of executive power to a new Republican Administration which was more favorably disposed to the AGC’s position and had little interest in aligning with and defending the Biden-era regulations. Both the District Court and the Fifth Circuit granted the Government a series of “abeyances” to decide how to proceed.
And now a deal has emerged that the Government will not oppose the entry of a final judgment in favor of the AGC on the three grounds mentioned above. That is no surprise. The Government in essence is acknowledging that the three rules are, indeed, in excess of statutory authority under the DBA and arbitrary and capricious. AGC’s counsel on May 27, 2026, has moved the Court to enter judgment in favor of the plaintiffs on the three rules and has joined with the Government to request that the Court dismiss the remainder of the claims. The Government is throwing in the towel.
The Government, however, while not opposing the motion here, is not willing to concede for any other case that the Court has the authority to vacate an agency rule. Specifically, the motion notes that: “In not opposing plaintiffs’ request that this Court enter final judgment, the government agrees not to pursue this position in this case but reserves the right to continue to advance this position in other cases.” See motion at page 4.
The upshot of this is that the misbegotten Biden-era attempt to apply the DBA by operation of law is likely to soon be completely dead. And if you are a trucker or materialman business bringing goods to a DBA covered work site, you are less likely to be caught up regulatory web and covered by the DBA. It would be very unusual for the Court to reject the unopposed motion, especially after granting a preliminary injunction. So the idea that the DBA applies to contracts which omit the DBA clauses and wage determinations by operation of law is no longer a feasible argument, nor can it be extended to the Service Contract Act (“SCA”) as well, which the US Department of Labor (“DOL”) had also suggested was possible in the DBA regulatory preamble. These were bad policies, upending years of settled law, and even a Supreme Court case known as Universities Research, v. Coutu. Hopefully, that DOL power grab is never going to be resurrected.