In 2003, the United States Court of Appeals for the Second Circuit (which encompasses New York) ruled that workers on projects covered by the federal Davis Bacon Act could not assert contract claims as alleged “third party beneficiaries” of Davis Bacon construction contracts, as permitting such claims would undermine Congress’ intent in electing not to include a private right of action in the Davis Bacon Act itself. Grochowski v. Phoenix Construction, 318 F.3d 80 (2d Cir. 2003). While in 2008, New York’s highest state court reached a contrary ruling in Cox v. NAP Construction Co., 10 N.Y.3d 592 (2008), the Second Circuit recently issued a decision reaffirming the Grochowski rule, and declining to revisit it in light of Cox. Carrion v. Agfa Constr., 2013 U.S. App. LEXIS 11873 (2d Cir. June 13, 2013).

In rejecting Plaintiff’s claim that the Cox decision either required or at least permitted the court to revisit the Grochowski bar to such claims, the Court observed that “a New York court's differing view of the preemptive scope of federal law does not allow, much less require, a panel of our Court to reconsider our controlling precedent, and we detect no other reason to revisit our conclusion in Grochowski.”

Prevailing wage law continues to require a highly technical analysis of the relevant statute or statutes to the contract in question. Businesses performing covered work must conduct these analyses, and understand all implications before bidding and/or accepting covered work.