Untitled Texas Attorney General Opinion

March 16,1971

Honorable J. C. Dingwall Opinion No. M-809
State Highway Engineer
State Highway Department Re: Whether the State Highway
Austin, Texas 78701 Department may legally ad-
vertise and award Highway
Construction projects fi-
nanced with both state and
federal funds without pro-
vision for the general rate
of per diem wages provided
Dear Mr. Dingwall: in Article 5159a, V. C. S.

We quote, in part, from your letter requesting an opinion of
our office, as follows:

“The President’s proclamation of February 23,
1971, suspended the provisions of the Davis-Bacon Act
and the provisions of all other Acts providing for the
payment of wages which provisions are dependent upon
determinations by the Secretary of Labor, under the
Davis-Bacon Act. The Federal Highway Administrator
has advised that proposals for Federal-Aid projects on
which bids are opened after March 5th, 1971, must con-
tain no wage determinations made under the provisions
of State Statutes or other wage determination processes.

“Can the State Highway Department legally ad-
vertise and award Highway Construction projects fi-
nanced with both State and Federal Funds that do not
contain the general prevailing rate of per diem wages
as provided in Article 5159a, V. C. S. ?

“The general prevailing rate of per diem wages
will be included in Highway Construction projects fi-
nanced entirely with State Highway Funds as provided in
Article 5159a, V. C. S. . . . ”

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Honorable J. C. Dingwall, page 2 (M-809)

Also, you have furnished us copies of a legal memorandum and ad-
ministrative construction by the Solicitor of Labor, U.S. Department
of Labor, dated March 1, 1971, addressed to all States’ Attorneys
General (Appendix “A” attached hereto) and a legal opinion dated
March 1, 1971, from the Attorney General’s Office, to the Solicitor
of Labor (Appendix “B” attached hereto. )

We are in agreement with their interpretation of the effect
of President Nixon’s action and emergency proclamation, which was
to remove from the federally involved construction contracts entered
into on or after February 23, 1971, all otherwise applicable federal
requirements that laborers and mechanics be paid at least the wage
rate determined by the Secretary of Labor, U.S. Department of Labor,
to be prevailing for their crafts. We also concur in the Attorney
General’s interpretation that all state-required wage standards pro-
visions have been rendered inapplicable for the duration of such sus-
pension to federally involved construction contracts on which the wage
payment requirements of the federal statutes and regulations have been
suspended. As we construe that interpretation, it is limited to federally-
assisted construction projects which are subject to statutory provisions
(e. g., 12 U.S.C. 17Olq(c), 20 U.S.C. 848, 42 U.S.C. 2685, 3107),
requiring the payment of wages determined in accordance with the Davis-
Bacon Act, 46 Stat. 1494, as amended.

You also have advised that the federal Department of Transporta-
tion has notified all Regional Federal Highway Administrators and Division
Engineers that in order to comply with the federal contractual requirements
for obtaining the construction funds on which bids are opened after March
5, not only must the deletion of Davis-Bacon provisions be effected, but
the bids

f, .. * must contain no wage determinations made
under the provisions of state statutes or other wage de-
termination processes. I’

Such are the conditions of the federal grant, and failure to comply there-
with will apparently preclude the state from obtaining such federal monies.

First, we will consider the standing and effect of the President’s
proclamation. The principle is well established in both the realm of federal
law and federal-state relations that

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Honorable J. C. Dingwall, page 3 (M-809)

‘1. . . where Congress has authorized a
public officer to take some specified legislative
action when in his judgment that action is neces-
sary or appropriate to carry out the policy of
Congress, the judgment of the officer as to the
existence of the facts calling for that action is not
subject to review . . .‘I U.S. v. Bush, 310 U.S.
37 1 ( 1940. )

In this Bush case, the President of the United States acted, as author-
ized under Act of Congress, by Proclamation to increase the duty and
changes in classification of certain foreign imports. In the earlier case
of Dakota Cent. Telephone Co. v. State of South Dakota, 250 U. S. 163
(1919) the very broad powers of the President to take possession and
control of telegraph, telephone, and other communication companies,
and operate them, by Proclamation, under authorization of Congress
and his wartime powers, was upheld. An Executive Order of the Presi-
dent

‘1. . is to be accorded the force and effect
given to a statute enacted by Congress. .”
Farkas v. Texas Instrument, Inc. 375 F. 2d 629
(5th Cir. 1967, cert. den. 389 U.S. 977. )

The power of the President to act by the Proclamation under con-
sideration is fully sustained by the authorities cited in support of the text
in the text book entitled Modern Constitutional Law, by Chester J. Antieau,
Volume II, Section 11:21 at pages 222-231, and Sections 13:22 through
13:25 at pages 526-531.

The interpretation of a federal statute subject to construction
by the executive department charged with its administration and enforce-
ment is entitled to the highest respect from the courts. 42 Am. Jur. 392,
Public Administrative Law, Sec. 78; Roland Electric Co. v. Walling, 326
U. S. 657 (1946); Mabee v. White Plains Pub. Co. , 327 U. S. 178 (1946);
Boutell v. Walling, 327 U. S. 463 (1946. )

Article 5159a, Vernon’s Civil Statutes, which provides for wage
standards provisions in Texas, is thus inapplicable to the above mentioned
federally involved construction contracts for the duration of such suspension.
The suspension provision (40 U. S. C. 276a-5) in our view precludes a state

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Honorable J. C. Dingwall, page 4 (M-809)

from imposing its own “Davis-Bacon” requirements on construction other-
wise subject to the Davis-Bacon statutes. The purpose of those statutes
was to provide a federal wage floor on those affected construction contracts
in which the federal government had an interest. This floor was removed
by the President’s emergency proclamation in the national interest. lf the
state were empowered to interpose its own wage floor on such federal con-
struction contracts, such would frustrate and render impotent the essential
purpose of the suspension provision, which was designed to permit the
President to suspend any wage floor, whether federal or state, in the national
interest.

In Attorney General Opinion No. S-185 (19561, it was held that Ar-
ticle 5159a was in conflict with the Davis-Bacon Act, as applied to the con-
struction of armories by the Texas National Guard Armory Board. How-
ever, as that Opinion makes clear that construction was being carried out
under a different Act of Congress, the National Defense Facilities Act of
1950, Section bb, as amended, which expressly recognized that the con-
struction “shall be done in accordance with the laws of such state . . . ”
Furthermore, the amendment had been interpreted by the Department of
Defense

‘1. . . to mean that State laws and procedures con-
trol the letting of construction contracts only insofar as
such laws are in conflict with Federal Statutes and pro-
cedures and that the Federal laws apply if there is no such
conflict. ”

The Attorney General thereupon concluded:

“Accepting this interpretation, the Davis-Bacon
Act will apply if it is not in conflict with the State law,
but Article 5159a will apply if there is a conflict be-
tween these two statutes. ”

In other words, the conditions of the grant were controlled by another and
specific federal Act, outside the scope of the Davis-Bacon Act.

We have concluded that the factual and legal situation presented by
your request is legally distinguishable from that. presented in Attorney
General Opinion No. S-185. In the present situation, the Davis-Bacon Act

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Honorable J. C. Dingwall, page 5 (M-809)

and federal laws and regulations under which the construction work is
being performed do not expressly provide for state laws and pro~cedures
to control the letting of the construction contracts. Furthermdre, they
have been interpreted by the Labor Department and Department of Jus-
tice to the effect that such state statutes were not applicable under the
suspension provision. Since Article 5159a would, if applicable, neces-
sarily conflict with the federal law, we are not required to hold that the
state law controls, as was held in Opinion S-185.

It is our opinion that our state statute must yield to any conflict-
ing provisions of congressional acts and federal regulations pursuant
thereto pertaining to those subjects within the scope of federal power.
Contineital Radio Co. v. Continental Bank & Trust Co. , 369 S.W. 2d 359
(Tex. Civ.App. 1963, error ref., n. r. e. ); Free v. Bland, 369 U.S. 663
(1962, revg. 344S.W.Zd435, Tex.Sup., 1961, and conformed to 359
S. W. 2d 27) holding that any state law, however clearly within state ac-
knowledged power, which interferes with or is contrary to federal law,
must yield. The Davis-Bacon Act and its related statutes involve a pro-
prietary function of the federal government. If state policy were to pre-
vail, a collision between it and federal policy would result and therefore,
the latter policy must govern. See Paul v. United States, 371 U.S. 245
(1963. 1

In view of the foregoing, we answer your question in the affirma-
tive.

SUMMARY

The State Highway Department may legally
advertise and award federally involved highway con-
struction contracts, financed with both state and
federal funds, which do not contain the general pre-
vailing rate of per diem wages as provided in Ar-
ticle 5159a, Vernon’s Civil Statutes, in view of
President Nixon’s emergency proclamation suspend-
ing the provisions of the Davis-Bacon Act (46 Stat.
1494, as amended) as well as all other federal acts
for the payment of wage rates on such projects which
are dependent upon prevailing wage determinat.ions by
th,e Secretary of Laborunder the Davis-Bacon Act.

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. . I.

Honorable J. C. Dingwall, page 6 (M-809)

Article 5159a, V. C. S., has been rendered in-
applicable, for the duration of such suspension to all
federal construction contracts entered into on or sub-
sequent to February 23, 1971, and until otherwise
provided, calling for the payment of wages as provided
in the Davis-Bacon Act of March ‘3, 1931, as amended,
or any other Acts calling for the payment of wages,
the provisions of which are dependent upon determina-
tions by the Secretary of Labor under the Davis-Bacon
Act.

Very truly yours,

CRAWFORD C. MARTIN
Attorney General of Texas

By:& a NOLA WHITE ’
First Assistant

Prepared by Kerns Taylor
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

W. E. Allen, Acting Chairman

J. C. Davis
Pat Bailey
John Reeves
Jack Goodman

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

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