A-56473, AUGUST 14, 1934, 14 COMP. GEN. 122

A-56473: Aug 14, 1934

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WHERE A CONTRACTOR HAS COMPLIED WITH ORDERS OF THE COMMANDING GENERAL IN PROCEEDING WITH THE WORK AND PAYED WAGE RATES DETERMINED BY THE DIRECTOR THERE IS NO LEGAL BASIS FOR CHARGING THE UNITED STATES WITH ANY AMOUNT IN EXCESS OF THE CONTRACT PRICE. THE CONTRACT AWARDED THE CLAIMANT WAS ON STANDARD GOVERNMENT FORM OF CONTRACT. THE PREVAILING RATE OF WAGES FOR THAT CIVIL DIVISION WAS DETERMINED BY CONTACTING THE LOCAL TRADE MECHANICS OF THE TOWN OF RED BUD. WHICH IS LOCATED 1 1/2 MILES FROM CAMP. THE RATE DETERMINED WAS 65 CENTS PER HOUR FOR SKILLED LABOR. THIS RATE WAS SENT OUT WITH THE INVITATION FOR BIDS. PRESUMABLY WAS USED BY THE BIDDERS AS A BASIS FOR DETERMINING THE AMOUNT OF THEIR BIDS.

A-56473, AUGUST 14, 1934, 14 COMP. GEN. 122

CONTRACTS - PREVAILING RATES OF WAGES THE ACT OF MARCH 3, 1931, 46 STAT. 1494, DOES NOT AUTHORIZE THE DIRECTOR, EMERGENCY CONSERVATION WORK, TO DETERMINE RATES OF WAGES TO BE PAID UNDER CONTRACT FOR CONSTRUCTION OF BUILDINGS FOR CIVILIAN CONSERVATION CORPS CAMPS, AND WHERE A CONTRACTOR HAS COMPLIED WITH ORDERS OF THE COMMANDING GENERAL IN PROCEEDING WITH THE WORK AND PAYED WAGE RATES DETERMINED BY THE DIRECTOR THERE IS NO LEGAL BASIS FOR CHARGING THE UNITED STATES WITH ANY AMOUNT IN EXCESS OF THE CONTRACT PRICE.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 14, 1934:

THE E. A. BRUNSON CONSTRUCTION CO. HAS FILED CLAIM FOR $786.61, REPRESENTING AN ADDITIONAL AMOUNT EXPENDED FOR LABOR, CAUSED BY CHANGES IN THE RATES OF WAGES TO BE PAID UNDER CONTRACT W-56-QM-428, DATED NOVEMBER 9, 1933, COVERING CONSTRUCTION OF WINTER QUARTERS FOR THE 691ST COMPANY, CIVILIAN CONSERVATION CORPS, CAMP RANDOLPH, F-53, RED BUD, ILL.

THE CONTRACT AWARDED THE CLAIMANT WAS ON STANDARD GOVERNMENT FORM OF CONTRACT. IT PROVIDED FOR CONSTRUCTION OF CERTAIN BUILDINGS FOR THE CIVILIAN CONSERVATION CORPS, SIXTH CORPS AREA, CAMP RANDOLPH, NEAR RED BUD, ILL. THE PREVAILING RATE OF WAGES FOR THAT CIVIL DIVISION WAS DETERMINED BY CONTACTING THE LOCAL TRADE MECHANICS OF THE TOWN OF RED BUD, WHICH IS LOCATED 1 1/2 MILES FROM CAMP. THE RATE DETERMINED WAS 65 CENTS PER HOUR FOR SKILLED LABOR, OR MECHANICS, AND 40 CENTS PER HOUR FOR UNSKILLED LABOR. THIS RATE WAS SENT OUT WITH THE INVITATION FOR BIDS, AND PRESUMABLY WAS USED BY THE BIDDERS AS A BASIS FOR DETERMINING THE AMOUNT OF THEIR BIDS. THE WAGE RATES TO BE PAID WERE POSTED BY THE CONTRACTOR, THE CLAIMANT HEREIN, AND WERE PAID UNTIL DECEMBER 1, 1933. APPARENTLY, THERE WAS NO DISPUTE AS TO THE PREVAILING WAGES FOR SUCH WORK IN THAT CIVIL DIVISION, AND THE WORKERS HAD NOT COMPLAINED. ON NOVEMBER 30, CONTRACTOR WAS ADVISED THAT THE DIRECTOR, EMERGENCY CONSERVATION WORK, HAD DETERMINED THAT CARPENTERS SHOULD BE PAID $1 PER HOUR AND LABORERS 50 CENTS PER HOUR. UPON RECEIPT OF THIS INFORMATION, CONTRACTOR SUSPENDED WORK AND THE COMMANDING GENERAL, SIXTH CORPS AREA, WAS SO NOTIFIED. DECEMBER 1, 1933, CONTRACTOR RECEIVED A TELEGRAM FROM THE COMMANDING GENERAL, SIXTH CORPS AREA, DIRECTING HIM TO PROCEED IMMEDIATELY WITH CONSTRUCTION AND ADVISING HIM THAT DELAY INCIDENT TO APPEAL WOULD NOT CONSTITUTE A BASIS FOR EXTENSION OF TIME UNDER THE CONTRACT. WORK WAS RESUMED DECEMBER 3, AND WAGES AS DETERMINED BY THE DIRECTOR, EMERGENCY CONSERVATION WORK, WERE PAID UNTIL THE WORK WAS COMPLETED ON DECEMBER 11, 1933, AND THE CONTRACTOR WAS PAID THE FULL CONTRACT PRICE. THE CLAIM HERE REPRESENTS THE DIFFERENCE BETWEEN THE AMOUNT EXPENDED FOR LABOR AT THE RATES FIXED BY THE DIRECTOR, EMERGENCY CONSERVATION WORK, AND THE AMOUNT THE SAME WORK WOULD HAVE COST UNDER THE FORMER RATES.

PARAGRAPH 20 OF THE CONTRACT PROVIDED IN PART AS FOLLOWS:

A. THE RATE OF WAGE FOR ALL LABORERS AND MECHANICS EMPLOYED BY THE CONTRACTOR OR ANY SUBCONTRACTOR ON THE PUBLIC BUILDING COVERED BY THIS 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 BUILDING IS LOCATED. IN CASE ANY DISPUTE ARISES AS TO WHAT ARE THE PREVAILING RATES OF WAGES FOR WORK OF A SIMILAR NATURE APPLICABLE TO THE CONTRACT WHICH CANNOT 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, AS PROVIDED IN THE ACT OF MARCH 3, 1931 (PUBLIC, NO. 798).

IN ADVANCE OF BEGINNING OF CONSTRUCTION, IT WAS DETERMINED BY THE COMMANDING OFFICER FOR THE 691ST COMPANY, CIVILIAN CONSERVATION CORPS, THAT THE TOWN OF RED BUD, ILL., WAS TO BE USED AS THE CIVIL DIVISION IN DETERMINING THE PREVAILING RATE OF WAGES FOR USE ON CONSTRUCTION WORK AT CAMP RANDOLPH. THE PREVAILING WAGE RATES WERE DETERMINED BY THE CONTRACTORS, CARPENTERS, LABORERS, AND CITY OFFICIALS, AND SUCH RATES APPARENTLY WERE NOT QUESTIONED UNTIL THE DIRECTOR, EMERGENCY CONSERVATION WORK, ORDERED THAT INCREASED WAGES BE PAID. IT WILL BE NOTED THAT NEITHER IN THE ACT OF MARCH 3, 1931, 46 STAT. 1494, NOR IN THE CONTRACT WAS THE DIRECTOR OF EMERGENCY CONSERVATION WORK GIVEN ANY AUTHORITY OR JURISDICTION WITH RESPECT TO THE RATE OF WAGES WHICH SHOULD BE PAID TO THE MECHANICS AND LABORERS EMPLOYED THEREUNDER. SINCE THE CONTRACTOR COMPLIED WITH THE ORDERS OF THE COMMANDING GENERAL IN PROCEEDING WITH THE WORK AND PAID THE WAGES AS DIRECTED BY THE DIRECTOR, EMERGENCY CONSERVATION WORK, THERE WAS, IN EFFECT, ACQUIESCENCE IN SAID ORDERS AND THERE IS NO LEGAL BASIS FOR CHARGING THE UNITED STATES WITH ANY AMOUNT IN EXCESS OF THE CONTRACT PRICE. SEE 12 COMP. GEN. 27, AND CASES THEREIN CITED. ALSO, THERE ARE NO APPROPRIATIONS AVAILABLE FOR PAYMENT OF ANY SUM IN EXCESS OF THE CONTRACT PRICE.