B-146824, OCT 17, 1974

B-146824, OCT 17, 1974

1. UNDER OPERATION AND MAINTENANCE CONTRACT CALLING FOR PERFORMANCE OF ROUTINE MAINTENANCE, REPAIR AND MINOR CONSTRUCTION OF PHYSICAL FACILITIES ON DAILY, CYCLIC, SCHEDULED BASIS, LAYING OF GRAVEL ON AIRPORT RUNWAY PURSUANT TO WORK ORDER UNDER CONTRACT BY CONTRACTOR'S FULL-TIME, IN-HOUSE WORK FORCE, WHICH WORK WAS INCLUDED IN CONTRACT PRICE PROPOSAL, WAS PROPERLY CONSIDERED ROUTINE MAINTENANCE, NOT CONSTRUCTION SUBJECT TO DAVIS -BACON ACT, SINCE TEST FOR DETERMINATION OF APPLICABILITY OF ACT IS NOT NATURE OF SPECIFIC WORK BUT NATURE OF CONTRACT. 2. DAVIS-BACON ACT NOT APPLICABLE TO CONTRACT WORK REQUEST AMENDMENT FOR CONSTRUCTION OF SOFTBALL ATHLETIC FIELD ISSUED DURING PRESIDENTIAL SUSPENSION OF DAVIS-BACON ACT. 3. CONSTRUCTION INCIDENTAL TO INSTALLATION OF EQUIPMENT FURNISHED UNDER SUPPLY CONTRACTS IS NOT SUBJECT TO DAVIS-BACON ACT.

D.E. CLARKE:

BY LETTER OF MAY 15, 1973, WITH ENCLOSURES, MR. D.E. CLARKE, FJCC/IBEW STEWARD, ALLEGED THAT ITT/ARCTIC SERVICE INC. (ITT/ARCTIC) PAID SERVICE CONTRACT ACT, 41 U.S.C. 351, ET SEQ., RATES ON CERTAIN CONSTRUCTION PROJECTS WHERE DAVIS-BACON ACT, 40 U.S.C. 276A, RATES WERE APPLICABLE.

CONTRACT F04606-69-C-0555 IN THE AMOUNT OF $49,406,517, ORIGINALLY AWARDED TO FEDERAL ELECTRIC CORPORATION AND LATER TRANSFERRED TO ITT/ARTIC BY NOVATION AGREEMENT, WAS FOR THE OPERATION AND MAINTENANCE (O&M) OF THE BALLISTIC MISSILE EARLY WARNING SYSTEMS (BMEWS) AT THULE, GREENLAND AND CLEAR, ALASKA, FOR THE PERIOD JULY 1, 1969, THROUGH 30, JUNE, 1972. PART OF THE REQUIREMENTS OF THE CONTRACT CALLED FOR THE CONTRACTOR TO PERFORM ROUTINE MAINTENANCE AND REPAIR OF THE PHYSICAL FACILITIES AND MINOR CONSTRUCTION IN CONNECTION WITH THESE FACILITIES. THIS WORK WAS TO BE PERFORMED BY A FULL-TIME CONTINUOUSLY EMPLOYED IN HOUSE WORK FORCE. THE WORK CONSISTED OF DAILY, CYCLIC LABOR PERFORMED ON A SCHEDULED BASIS, MUCH ON THE ORDER OF THE WORK ORDINARILY PERFORMED BY A BASE CIVIL ENGINEER FORCE. THE LAYING OF THE FOUR INCHES OF GRAVEL SURFACE ON THE AIRPORT RUNWAY, MENTIONED BY MR. CLARKE AS A PROJECT WHICH SHOULD HAVE BEEN COVERED BY THE DAVIS-BACON ACT, WAS TREATED AS PART OF THE ROUTINE MAINTENANCE OF THE AIRPORT RUNWAY AT CLEAR AIR STATION FOR THE FISCAL YEAR 1972 AND WAS PERFORMED BY THE CONTRACTOR'S IN-HOUSE WORK FORCE. THIS WORK WAS CONSIDERED TO BE WITHIN THE SCOPE OF THE CONTRACT REQUIREMENTS MENTIONED ABOVE, AND WE ARE ADVISED THAT THE COST OF THIS PROJECT WAS INCLUDED IN THE CONTRACT PRICE PROPOSAL. WE ALSO NOTE THAT THIS WORK WAS PERFORMED PURSUANT TO A WORK ORDER (WORK ORDER 15-3), WHICH WAS AN INTERNAL PROCEDURE USED AS A CONTROL MECHANISM OVER MAINTENANCE, REPAIR AND MINOR CONSTRUCTION PROJECTS. HAD THIS BEEN CONSIDERED A MAJOR CONSTRUCTION PROJECT, A WORK REQUEST WOULD HAVE BEEN ISSUED WHICH WOULD HAVE REQUIRED AN AMENDMENT TO THE CONTRACT.

IN A SIMILAR CASE, 40 COMP. GEN. 565 (1961), INVOLVING THE OPERATION AND MAINTENANCE OF AN ORDNANCE PLANT, WE UPHELD THE CONTRACTING OFFICER'S POSITION THAT THE REPLACEMENT, SURFACING, AND LINING OF APPROXIMATELY 10 MILES OF A 90-MILE RAILROAD WAS MINOR REPAIR OR MAINTENANCE OF A ROUTINE NATURE. WE STATED IN THAT CASE THAT:

"*** IT IS NOT NECESSARILY THE NATURE OF SPECIFIC WORK BUT CONTRACT CONTENT WHICH GOVERNS APPLICABILITY; WHETHER OR NOT THE WORK TO BE DONE IS IN THE NATURE OF REPAIRS OR MAINTENANCE IS NOT THE SOLE DETERMINATIVE FACTOR. A PROPER TEST TO DETERMINE APPLICABILITY WOULD BE WHETHER OR NOT A CONTRACT ESSENTIALLY OR SUBSTANTIALLY CONTEMPLATES THE PERFORMANCE OF WORK DESCRIBED BY THE ENUMERATED ITEMS (CONSTRUCTION, ALTERATION, AND/OR REPAIR, INCLUDING PAINTING AND DECORATING).

WE HELD IN THAT CASE THAT THE PRIME CONTRACT, CONSIDERED AS A WHOLE, WAS NOT A CONTRACT FOR "*** CONSTRUCTION, ALTERATION, AND/OR REPAIR, INCLUDING PAINTING AND DECORATING." IN VIEW OF THE ABOVE, WE FIND NO REASON TO OBJECT TO THE TREATMENT OF THIS PROJECT AS ROUTINE MAINTENANCE NOT SUBJECT TO THE DAVIS-BACON ACT.

THE LANDSCAPING OF THE BALL PARK, MENTIONED BY MR. CLARKE AS AN EXAMPLE OF A SITUATION WHICH SHOULD HAVE BEEN COVERED WAS PART OF A PROJECT FOR THE CONSTRUCTION OF A SOFTBALL ATHLETIC FIELD. THE WORK ORDINARILY WOULD HAVE BEEN COVERED BY THE ACT. HOWEVER, ON FEBRUARY 23, 1971, BY PRESIDENTIAL PROCLAMATION, THE DAVIS-BACON ACT WAS SUSPENDED. THE SUSPENSION WAS REVOKED BY PRESIDENTIAL PROCLAMATION ON MARCH 29, 1971. WORK REQUEST AMENDMENT A00024 FOR THE CONSTRUCTION OF THE SOFTBALL ATHLETIC FIELD WAS EXECUTED BY THE CONTRACTING OFFICER ON MARCH 29, 1971, WITH AN EFFECTIVE DATE OF APRIL 1, 1971. THE AMENDMENT STATED THAT THE CONTRACTOR WAS NOT REQUIRED TO COMPLY WITH THE DAVIS BACON ACT. INSTRUCTIONS ISSUED BY HEADQUARTERS, USAF, ON MARCH 30, 1971, ADVISED THAT SOLICITATIONS FOR CONSTRUCTION IN EXCESS OF $2,000 AND AMENDMENTS TO CONTRACTS, INVOLVING NEW WORK OUTSIDE THE SCOPE OF THE CONTRACTS, ISSUED ON OR AFTER MARCH 30, MUST CONTAIN THE DAVIS BACON ACT PROVISIONS. LIGHT OF THE FACT THAT THE WORK REQUEST AMENDMENT WAS ISSUED DURING THE PERIOD THAT THE DAVIS-BACON ACT WAS SUSPENDED WE AGREE WITH THE DETERMINATION THAT THIS PROJECT WAS NOT COVERED BY THE ACT.

ALSO, IN MR. CLARKE'S LETTER OF NOVEMBER 7, 1972, TO ITT/ARCTIC, HE MENTIONED THE FOLLOWING FOUR PROJECTS AS POSSIBLY BEING COVERED BY THE DAVIS-BACON ACT:

1. ATOMIC CLOCK INSTALLATION

2. WAREHOUSE LIGHTING INSTALLATION

3. TRACKER PULSE COMPRESSOR INSTALLATION

4. AUTOMOTIVE SHOP, OFFICE INSTALLATION

TWO OF THESE PROJECTS, THE ATOMIC CLOCK INSTALLATION AND THE TRACKER PULSE COMPRESSOR INSTALLATION, INVOLVED NO MROE THAN INCIDENTAL CONSTRUCTION IN SUPPORT OF SUPPLY CONTRACTS. THE ATOMIC CLOCK INSTALLATION CONTRACT (F04606-72-C-412) WITH ITT/ARTIC WAS A CONTRACT IN THE AMOUNT OF $97,134 FOR THE MAINUFACTURE AND INSTALLATION OF PRECISION TIMING SETS (ATOMIC CLOCKS) AT CLEAR AIR FORCE STATION AND THULE AIR STATION. THE RELATED CONSTRUCTION INVOLVED A COST OF LESS THAN $250. CONTRACT F04606-69-C-0897, IN THE AMOUNT OF $1,756,620, WITH THE RADIO CORPORATION OF AMERICA WAS A SUPPLY CONTRACT TO MANUFACTURE AND INSTALL AN ELECTRONIC SYSTEM WHICH WOULD PROVIDE A PULSE IMPRESSION CAPABILITY TO THE VARIOUS RADAR SYSTEMS AT CLEAR AIR STATION. CONSTRUCTION INVOLVED IN MAKING MINOR ALTERATIONS TO THE AREA WHERE THE PULSE COMPRESSOR SYSTEM WAS TO BE INSTALLED COST $673.75. BOTH OF THESE SUPPLY CONTRACTS WERE SUBJECT TO THE WALSH-HEALEY PUBLIC CONTRACTS ACT, 40 U.S.C. 35, ET SEQ., AND INCIDENTAL CONSTRUCTION REQUIRED BY THESE SUPPLY CONTRACTS IS CONSIDERED AN INTEGRAL PART OF MANUFACTURING AND FURNISHING OF THE SUPPLIES AND WHERE, AS IN THE PRESENT CASE, SUCH CONSTRUCTION INVOLVES NO MORE THAN A MINIMAL AMOUNT OF JOB-SITE ACTIVITY, THE DAVIS-BACON ACT WOULD NOT APPLY. SEE B 152470, FEBRUARY 14, 1964, AND B-150905, MAY 24, 1963. IN ANY EVENT, THE DAVIS-BACON ACT WOULD NOT BE APPLICABLE TO THE TWO INCIDENTAL CONSTRUCTION PROJECTS SINCE NIETHER EXCEEDED $2,000, WHICH IS THE STATUTORY MINIMUM AMOUNT FOR COVERAGE BY THE ACT. 40 U.S.C. 276A. FURTHER, THE WAREHOUSE LIGHTING INSTALLATION AND THE AUTOMOTIVE SHOP OFFICE INSTALLATION WERE COVERED BY SEPARATE WORK ORDERS, THOSE FOR THE FORMER INSTALLATION ISSUED IN 1972 AND THAT FOR THE LATTER ISSUED IN 1970. THE TOTAL COSTS FOR THE JOBS WERE $1,637 AND $1,950, RESPECTIVELY, WHICH AMOUNTS ARE ALSO BELOW THE MINIMUM FOR COVERAGE BY THE DAVIS-BACON ACT. MOREOVER, A FAILURE TO INCLUDE DAVIS-BACON ACT PROVISIONS AND APPLICABLE WAGE RATES IN CONTRACT SPECIFICATIONS, EVEN ASSUMING THEY PROPERLY SHOULD HAVE BEEN INCLUDED, CANNOT BE CURED RETROACTIVELY. COMP. GEN. 565 (1961) AND 44 ID. 498 (1965).