Some Washingtonians stroll through CityCenterDC on shopping sprees at “upscale retail stores such as Hermès, Boss, and Louis Vuitton,” or meet for lunch at “high-end restaurants such as DBGB and Centrolina.”  Covington lawyers watch these scenes from our offices in the northwest corner of CityCenterDC, where we recently analyzed the D.C. Circuit’s opinion holding that we and our luxury-minded fellow tenants work in a mixed-use development that is not subject to the Davis-Bacon Act.  The court’s opinion was a stern rebuff to the Department of Labor, which had “advanced a novel reading of the Davis-Bacon Act that would significantly enlarge the number and kinds of construction projects covered by the Act.” 

The Davis-Bacon Act requires the payment of prevailing wages for employees on “every contract in excess of $2,000, to which the Federal Government or the District of Columbia is a party, for construction, alteration, or repair … of public buildings and public works….”  The Labor Department argued that its long-term lease of land to the developers provided enough of a nexus to constitute a “contract … for construction” to which the District was a party.  It argued further that the ancillary public benefits CityCenterDC is expected to generate made the project a “public work.”  The court disagreed.  Affirming the 2014 decision of the District Court, the D.C. Circuit held that CityCenterDC fell outside the Act’s coverage in two respects.

First, the D.C. government was not a party to the transaction.  Instead, it leased the underlying land to private developers, who then entered construction contracts with the laborers.  The District was neither a lessee nor lessor of the land, and its attenuated connection to those contracts did not make it a “party” to the contracts.

Second, CityCenterDC is not a “public work.”  The project did not receive public funding, and the D.C. government does not own or operate the finished development.  CityCenterDC met neither of those two elements of the public work test, so the conclusion in this case was relatively easy for the court to reach.

However, the court left open the question whether both elements must be present for a project to qualify as a “public work” under the Davis-Bacon Act.  The court held only “that a project must possess at least one (if not both) of” those elements to be a public work.  In other words, the opinion contemplates the possibility that a construction project might have some level of governmental involvement — either funding or ownership/operation — and still fall outside the Davis-Bacon regime.

Despite the lingering questions about the contours of the “public work” definition, the opinion provides helpful clarity about the Act’s coverage.  The CityCenterDC developers can come visit some great restaurants to raise a celebratory toast.

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Photo of Scott A. Freling Scott A. Freling

Scott Freling represents civilian and defense contractors, at all stages of the procurement process, in their dealings with federal, state, and local government customers and with other contractors. He has a broad-based government contracts practice, which includes compliance counseling, internal investigations, strategic procurement…

Scott Freling represents civilian and defense contractors, at all stages of the procurement process, in their dealings with federal, state, and local government customers and with other contractors. He has a broad-based government contracts practice, which includes compliance counseling, internal investigations, strategic procurement advice, claims and other disputes, teaming and subcontracting, and mergers and acquisitions. He represents clients in federal and state court litigation and administrative proceedings, including bid protests before the Government Accountability Office and the U.S. Court of Federal Claims. He also represents clients in obtaining and maintaining SAFETY Act liability protection for anti-terrorism technologies. Mr. Freling’s experience covers a wide variety of industries, including defense and aerospace, information technology and software, government services, life sciences, renewable energy, and private equity investment in government contractors.

Photo of Lindsay Burke Lindsay Burke

Lindsay Burke co-chairs the firm’s employment practice group and regularly advises U.S., international, and multinational employers on employee management issues and international HR compliance. Her practice includes advice pertaining to harassment, discrimination, leave, whistleblower, wage and hour, trade secret, and reduction-in-force issues arising…

Lindsay Burke co-chairs the firm’s employment practice group and regularly advises U.S., international, and multinational employers on employee management issues and international HR compliance. Her practice includes advice pertaining to harassment, discrimination, leave, whistleblower, wage and hour, trade secret, and reduction-in-force issues arising under federal and state laws, and she frequently partners with white collar colleagues to conduct internal investigations of executive misconduct and workplace culture assessments in the wake of the #MeToo movement. Recently, Lindsay has provided critical advice and guidance to employers grappling with COVID-19-related employment issues.

Lindsay guides employers through the process of hiring and terminating employees and managing their performance, including the drafting and review of employment agreements, restrictive covenant agreements, separation agreements, performance plans, and key employee policies and handbooks. She provides practical advice against the backdrop of the web of state and federal employment laws, such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Equal Pay Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and the False Claims Act, with the objective of minimizing the risk of employee litigation. When litigation looms, Lindsay relies on her experience as an employment litigator to offer employers strategic advice and assistance in responding to demand letters and agency charges.

Lindsay works frequently with the firm’s privacy, employee benefits and executive compensation, corporate, government contracts, and cybersecurity practice groups to ensure that all potential employment issues are addressed in matters handled by these groups. She also regularly provides U.S. employment law training, support, and assistance to start-ups, non-profits, and foreign parent companies opening affiliates in the U.S.