A-41390, A-41666, JULY 14, 1932, 12 COMP. GEN. 27

A-41390,A-41666: Jul 14, 1932

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A CONTRACTOR IS NOT ENTITLED TO ANY SUM FROM APPROPRIATED MONEYS AS WAGES PAID PURSUANT TO SUCH AN ADJUSTMENT IN EXCESS OF WHAT ARE IN FACT ALLEGED TO BE THE PREVAILING RATES OF WAGES. NOR ARE MECHANICS AND LABORERS ENTITLED TO ANY SUM FROM APPROPRIATED MONEYS AS WAGES ALLEGED TO HAVE BEEN PAID LESS THAN THE PREVAILING RATES OF WAGES. 939.09 ALLEGED TO HAVE BEEN PAID BY THE COMPANY UNDER ORDERS OF THE SECRETARY OF WAR IN EXCESS OF THE PREVAILING RATE OF WAGES IN CONNECTION WITH WORK UNDER THE CONTRACT OF APRIL 25. SOME 200 OR MORE MECHANICS AND LABORERS EMPLOYED BY THE CONTRACTOR IN CONNECTION WITH THE WORK UNDER THESE TWO CONTRACTS HAVE REQUESTED THIS OFFICE EITHER TO DEDUCT FROM SUMS OTHERWISE DUE THE CONTRACTOR THE SUM OF $27.

A-41390, A-41666, JULY 14, 1932, 12 COMP. GEN. 27

CONTRACTS - PREVAILING RATES OF WAGES THE ACT OF MARCH 3, 1931, 46 STAT. 1494, DOES NOT AUTHORIZE EITHER THE CONTRACTING OFFICER OR THE SECRETARY OF LABOR IN ADJUSTING WAGE DISPUTES BETWEEN CONTRACTORS AND LABORERS TO IMPOSE ANY LIABILITY THEREFOR ON APPROPRIATED MONEYS, AND A CONTRACTOR IS NOT ENTITLED TO ANY SUM FROM APPROPRIATED MONEYS AS WAGES PAID PURSUANT TO SUCH AN ADJUSTMENT IN EXCESS OF WHAT ARE IN FACT ALLEGED TO BE THE PREVAILING RATES OF WAGES, NOR ARE MECHANICS AND LABORERS ENTITLED TO ANY SUM FROM APPROPRIATED MONEYS AS WAGES ALLEGED TO HAVE BEEN PAID LESS THAN THE PREVAILING RATES OF WAGES. THE ACT OF MARCH 3, 1931, 46 STAT. 1494, DOES NOT AUTHORIZE THE WITHHOLDING OF A PART OF THE CONTRACT PRICE PENDING SETTLEMENT BY THE CONTRACTOR OF PREVAILING WAGE CLAIMS OF LABORERS AND MECHANICS.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 14, 1932:

THE TOWNSEND LUMBER CO. HAS REQUESTED (1) PAYMENT OF THE SUM OF $14,480.41 AS BALANCE ADMINISTRATIVELY WITHHELD UNDER CONTRACT W-6174 QM- 33, DATED APRIL 25, 1931, FOR THE CONSTRUCTION OF CERTAIN BUILDINGS AT LANGLEY FIELD, VA., AND (2) THE SUM OF $75,625.99 AS EXCESS COSTS DUE TO BEING "DAILY HARASSED BY OFFICERS AND AGENTS OF THE WAR DEPARTMENT AND AGENTS OF LABOR UNIONS," INCLUDING $34,939.09 ALLEGED TO HAVE BEEN PAID BY THE COMPANY UNDER ORDERS OF THE SECRETARY OF WAR IN EXCESS OF THE PREVAILING RATE OF WAGES IN CONNECTION WITH WORK UNDER THE CONTRACT OF APRIL 25, 1931, AND CONTRACT NO. W-6174-QM-32, DATED APRIL 17, 1931. ALSO, SOME 200 OR MORE MECHANICS AND LABORERS EMPLOYED BY THE CONTRACTOR IN CONNECTION WITH THE WORK UNDER THESE TWO CONTRACTS HAVE REQUESTED THIS OFFICE EITHER TO DEDUCT FROM SUMS OTHERWISE DUE THE CONTRACTOR THE SUM OF $27,811.14 ALLEGED TO BE DUE AS THE DIFFERENCE BETWEEN THE WAGES PAID AND THE PREVAILING RATE OF WAGES OR TO WITHHOLD PAYMENT FROM THE CONTRACTOR OF SAID AMOUNT.

PRELIMINARILY, IT MAY BE SAID THAT LANGLEY FIELD, VA., CONSISTS OF AN ARMY POST LOCATED IN THE OPEN COUNTRY A FEW MILES FROM PHOEBUS, HAMPTON, AND FORTRESS MONROE, VA., WHICH ARE SMALL TOWNS, AND A FEW MORE MILES FROM NORFOLK, VA., WHICH IS A LARGER TOWN. IT SEEMS THAT AT THE INCEPTION OF THE WORK UNDER THESE CONTRACTS DISPUTES AROSE BETWEEN THE CONTRACTING OFFICER AND THE CONTRACTOR AS TO THE RATE OF WAGES THAT SHOULD BE PAID, AND THE DISPUTES WERE SUBMITTED TO THE SECRETARY OF LABOR PURSUANT TO THE ACT OF MARCH 3, 1931, 46 STAT. 1494, WHICH PROVIDED, IN PERTINENT PART:

THAT EVERY CONTRACT IN EXCESS OF $5,000 IN AMOUNT, TO WHICH THE UNITED STATES OR THE DISTRICT OF COLUMBIA IS A PARTY, WHICH REQUIRES OR INVOLVES THE EMPLOYMENT OF LABORERS OR MECHANICS IN THE CONSTRUCTION, ALTERATION, AND/OR REPAIR OF ANY PUBLIC BUILDINGS OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA WITHIN THE GEOGRAPHICAL LIMITS OF THE STATES OF THE UNION OR THE DISTRICT OF COLUMBIA, SHALL CONTAIN A PROVISION TO THE EFFECT THAT THE RATE OF WAGE FOR ALL LABORERS AND MECHANICS EMPLOYED BY THE CONTRACTOR OR ANY SUBCONTRACTOR ON THE PUBLIC BUILDINGS COVERED BY THE CONTRACT SHALL BE NOT LESS THAN THE PREVAILING RATE OF WAGES FOR WORK OF A SIMILAR NATURE IN THE CITY, TOWN, VILLAGE, OR OTHER CIVIL DIVISION OF THE STATE IN WHICH THE PUBLIC BUILDINGS ARE LOCATED, OR IN THE DISTRICT OF COLUMBIA IF THE PUBLIC BUILDINGS ARE LOCATED THERE, AND A FURTHER PROVISION THAT IN CASE ANY DISPUTE ARISES AS TO WHAT ARE PREVAILING RATES OF WAGES FOR WORK OF A SIMILAR NATURE APPLICABLE TO THE CONTRACT WHICH CAN NOT BE ADJUSTED BY THE CONTRACTING OFFICER, THE MATTER SHALL BE REFERRED TO THE SECRETARY OF LABOR FOR DETERMINATION AND HIS DECISION THEREON SHALL BE CONCLUSIVE ON ALL PARTIES TO THE CONTRACT: PROVIDED, THAT IN CASE OF NATIONAL EMERGENCY THE PRESIDENT IS AUTHORIZED TO SUSPEND THE PROVISIONS OF THIS ACT.

ALSO, IT SEEMS THE SECRETARY OF LABOR HAD CONSIDERED DISPUTES CONCERNING THE PREVAILING RATE OF WAGES WITH OTHER CONTRACTORS AT WORK AT LANGLEY FIELD, AND IN LETTER OF SEPTEMBER 12, 1931, THE SECRETARY OF LABOR INFORMED THE SECRETARY OF WAR THAT HE HAD GIVEN CAREFUL CONSIDERATION TO THE APPEAL OF SUCH CONTRACTORS FROM THE RATES OF PAY ESTABLISHED BY THE CONTRACTING OFFICER, AND THAT HE, THE SECRETARY OF LABOR, RECOMMENDED AND DETERMINED THAT THE RATE ESTABLISHED BY THE CONTRACTING OFFICER BE ESTABLISHED AS THE PREVAILING RATE, NAMING THE RATES FOR CARPENTERS, PLUMBERS AND STEAM FITTERS, COMMON LABORERS, PAINTERS, ELECTRICIANS, AND BRICKLAYERS. THIS LETTER OF SEPTEMBER 12, 1931, WAS WITH RESPECT TO CONTRACTS WITH THE M. H. SOBEL CO. AND THE JEWELL-RIDDLE CO., AND ON THE BASIS THEREOF THE CONTRACTING OFFICER APPARENTLY DIRECTED THE TOWNSEND LUMBER CO. TO PAY SIMILAR WAGES UNDER ITS TWO CONTRACTS WITH THE UNITED STATES. THE CONTRACTOR HAS ALLEGED THAT IT PAID AN AGGREGATE OF $34,939.09, INCLUDING COMPENSATION INSURANCE, PURSUANT TO SUCH ORDERS IN EXCESS OF WHAT WAS, IN FACT, THE PREVAILING RATE OF WAGES FOR WORK OF A SIMILAR NATURE IN THE CITY, TOWN, VILLAGE, OR OTHER CIVIL SUBDIVISION OF THE STATE IN WHICH LANGLEY FIELD IS LOCATED AND THAT THE TOTAL DAMAGE SUSTAINED, OR EXCESS EXPENDITURES MADE, AGGREGATED $75,625.99.

APPARENTLY IT IS THE CONTENTION ON BEHALF OF THE LABORERS AND MECHANICS THAT THE CONTRACTOR CLASSIFIED CARPENTERS AS CARPENTER HELPERS AND PAID THEM A LESSER RATE OF WAGE THAN THEY WOULD HAVE BEEN ENTITLED TO RECEIVE HAD THEY BEEN CLASSIFIED AS CARPENTERS. IT IS NOT CLEARLY SHOWN, BUT IT IS PRESUMED, A LIKE CLAIM IS INTENDED THAT SIMILAR CLASSIFICATIONS ARE MADE WITH RESPECT TO BRICKLAYERS AND OTHER MECHANICS AND THAT BY REASON THEREOF IT IS ALLEGED THE WORKMEN WERE UNDERPAID THE CLAIMED AGGREGATE OF $27,811.14.

AS TO THE CONTENTION OF THE CONTRACTOR THAT IT IS ENTITLED TO THE SUM OF $75,625.99, INCLUDING $34,939.09 PAID TO LABORERS IN EXCESS OF THE PREVAILING RATE OF WAGES, AND THE CONTENTION OF THE MECHANICS AND LABORERS THAT THEY ARE ENTITLED TO AN ADDITIONAL AMOUNT OF $27,811.14, IT MAY BE SAID THAT THE ABOVE-QUOTED TERMS OF THE ACT OF MARCH 3, 1931, ARE CLEAR AND UNAMBIGUOUS, AND IN THE ABSENCE OF FRAUD OR COLLUSION THE DETERMINATION OF THE SECRETARY OF LABOR OF A DISPUTE AS TO THE PREVAILING RATE OF WAGES UNDER A CONTRACT WITHIN THE SAID ACT IS FINAL AND CONCLUSIVE ON THE CONTRACTOR AS WELL AS ON THE LABORER AND MECHANIC, IN SO FAR AS THE QUESTION OF THE PREVAILING RATE OF WAGES IS CONCERNED. COMPARE UNITED STATES V. BABCOCK, 250 U.S. 328, AND PENN BRIDGE CO. V. UNITED STATES, 59 CT.CLS. 892, AND DECISIONS CITED THEREIN AT PAGE 897. IF THE SECRETARY OF LABOR MADE NO DETERMINATION UNDER A PARTICULAR CONTRACT AND THE CONTRACTOR COMPLIED WITH THE REQUEST OF THE CONTRACTING OFFICER THAT PARTICULAR RATES OF WAGES BE PAID, NEITHER A LABORER NOR A CONTRACTOR MAY RECOVER ADDITIONAL WAGES FROM THE UNITED STATES, FOR THE SAID ACT OF MARCH 3, 1931, DOES NOT AUTHORIZE THE SECRETARY OF LABOR IN ADJUSTING DISPUTES BETWEEN CONTRACTORS AND LABORERS OR OTHERWISE TO IMPOSE ANY LIABILITY THEREFOR ON APPROPRIATED MONEYS.

THE APPROPRIATIONS CONTAINED IN THE ACTS OF JULY 3, 1930, 46 STAT. 1013, 1014, AND FEBRUARY 23, 1931, 46 STAT. 1285, 1286, CHARGEABLE WITH THE COST OF CONSTRUCTING THE BUILDINGS, ETC., IN QUESTION, DO NOT PROVIDE FOR THE PAYMENT OF WAGE CLAIMS OF EITHER A CONTRACTOR OR LABORER, NOR IS THERE ANY AUTHORITY FOR THE PAYMENT OF SUCH CLAIMS IN THE ACT OF MARCH 3, 1931, WHICH BECAME LAW AFTER THE DATE OF THE DECISION IN 10 COMP. GEN. 294, WHEREIN IT WAS SAID, PAGE 300, THAT:

IT HAS LONG BEEN THE RULE, ENFORCED UNIFORMLY BY THE ACCOUNTING OFFICERS AND THE COURTS, THAT AN APPROPRIATION OF PUBLIC MONEYS BY THE CONGRESS, MADE IN GENERAL TERMS, IS AVAILABLE ONLY TO ACCOMPLISH THE PARTICULAR THING AUTHORIZED BY THE APPROPRIATION TO BE DONE. IT IS EQUALLY WELL ESTABLISHED THAT PUBLIC MONEYS SO APPROPRIATED ARE AVAILABLE ONLY FOR USES REASONABLY AND CLEARLY NECESSARY TO THE ACCOMPLISHMENT OF THE THING AUTHORIZED BY THE APPROPRIATION TO BE DONE. (SEE SECTION 3678, REVISED STATUTES.)

IT MUST, THEREFORE, BE HELD THAT THERE ARE NO APPROPRIATIONS AVAILABLE FOR THE PAYMENT TO THE CONTRACTOR OF ANY PART OF THE CLAIMED SUM OF $75,625,99 OR FOR PAYMENT TO THE MECHANICS AND LABORERS OF ANY PART OF THE CLAIMED SUM OF $27,811.14.

AS TO THE CONTENTION THAT THIS OFFICE SHOULD WITHHOLD PAYMENT TO THE CONTRACTOR OF THE UNPAID BALANCE OF THE CONTRACT PRICE UNTIL THE CONTRACTOR HAD ADJUSTED THE CLAIMS OF THE MECHANICS AND LABORERS, IT IS TO BE OBSERVED THAT NEITHER THE CONTRACTS NOR THE TERMS OF THE ACT OF MARCH 3, 1931, CITED, CONTAIN ANY PROVISION FOR THE WITHHOLDING BY THE UNITED STATES OF ANY AMOUNT DUE THE CONTRACTOR FOR FAILURE TO PAY MECHANICS AND LABORERS EMPLOYED BY THE CONTRACTOR. IT WAS HELD IN DECISION DATED JUNE 8, 1932 (A-42543), INTERPRETING SIMILAR CONTRACTS, THAT IN THE ABSENCE OF STATUTORY PROVISION THEREFOR, THIS OFFICE IS UNAUTHORIZED TO ADJUST CLAIMS BETWEEN A CONTRACTOR AND HIS EMPLOYEES AS TO THE PROPER AMOUNT OF WAGES WHICH THE EMPLOYEES WERE ENTITLED TO RECEIVE, AND THIS ASIDE FROM ANY QUESTION WHETHER THE CONTRACTOR HAD AUTHORITY TO CLASSIFY THE EMPLOYEES IN OTHER LOWER GRADES, AS IS ALLEGED TO HAVE BEEN DONE, AND THE EFFECT OF THE EMPLOYEES APPARENTLY ACQUIESCING THEREIN BY DOING THE WORK AND ACCEPTING PAY ON THE BASIS OF SUCH CLASSIFICATION.

ALSO, AS POINTED OUT IN DECISION OF JUNE 18, 1932, A-42824, THE ACT OF AUGUST 13, 1894, 28 STAT. 278, AS AMENDED BY THE ACT OF FEBRUARY 24, 1905, 33 STAT. 811, 812, REQUIRES PERFORMANCE BONDS, AMONG OTHER THINGS, TO GUARANTEE THE PAYMENT OF MATERIALMEN AND LABORERS, AND WHILE THE QUESTION WHETHER THE REMEDY UNDER SUCH ACTS MAY OR MAY NOT BE OF PRACTICABLE APPLICATION IN THE PROTECTION OF LABORERS IN THE PAYMENT OF THE PREVAILING RATE OF WAGES UNDER GOVERNMENT CONSTRUCTION CONTRACTS IS FOR THE COURTS, NO AUTHORITY HAS BEEN CONFERRED ON THIS OFFICE TO ADJUST SUCH CLAIMS UNDER CONTRACTS SUCH AS THE ONES HERE IN QUESTION. IT NECESSARILY FOLLOWS THAT THERE MUST BE NEGATIVED THE SUGGESTION THAT THIS OFFICE WITHHOLD PAYMENT TO THE CONTRACTOR UNTIL SUCH TIME AS THE CONTRACTOR ACQUIESCES IN THE CONTENTIONS OF THE MECHANICS AND LABORERS.

THE CLAIM OF THE CONTRACTOR FOR ANY BALANCE DUE UNDER THE CONTRACT WILL BE PROMPTLY TAKEN UP FOR CONSIDERATION, AND SETTLEMENT CERTIFICATE WILL ISSUE IN DUE COURSE.