A-57204, AUGUST 18, 1934, 14 COMP. GEN. 138

A-57204: Aug 18, 1934

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CONTRACTS - EFFECT OF CONTROVERSIES WITH LOWEST BIDDER IN CONNECTION WITH OTHER GOVERNMENT WORK THE FACT THAT THE LOWEST BIDDER FOR CONSTRUCTION WORK FOR THE GOVERNMENT MAY PREVIOUSLY HAVE HAD CONTROVERSIES WITH ITS EMPLOYEES IN CONNECTION WITH OTHER FEDERAL CONSTRUCTION WORK WHICH RESULTED IN HEARINGS AND A REQUIREMENT. THERE WERE RECEIVED AND OPENED FIVE BIDS IN THE AMOUNTS OF $46. IS APPARENTLY OTHERWISE QUALIFIED. THIS COMPANY CONSTRUCTED THE PHELPS TRADE SCHOOL FOR THE DISTRICT OF COLUMBIA AND DURING THE PERIOD OF CONSTRUCTION CONSIDERABLE DIFFICULTY WAS ENCOUNTERED IN ENFORCING WAGE RATES AS REQUIRED BY THE ACT OF MARCH 3. HAVE BEEN STATED IN MY DECISION OF MAY 4. WHICH IS APPLICABLE TO CONTRACTS IN EXCESS OF $5.

A-57204, AUGUST 18, 1934, 14 COMP. GEN. 138

CONTRACTS - EFFECT OF CONTROVERSIES WITH LOWEST BIDDER IN CONNECTION WITH OTHER GOVERNMENT WORK THE FACT THAT THE LOWEST BIDDER FOR CONSTRUCTION WORK FOR THE GOVERNMENT MAY PREVIOUSLY HAVE HAD CONTROVERSIES WITH ITS EMPLOYEES IN CONNECTION WITH OTHER FEDERAL CONSTRUCTION WORK WHICH RESULTED IN HEARINGS AND A REQUIREMENT, MET BY THE CONTRACTOR, THAT THERE BE PAID TO SUCH EMPLOYEES SUFFICIENT AMOUNTS TO BRING THEIR PAYMENTS UP TO THE AMOUNT REQUIRED BY THE PREVAILING WAGE LAW, DOES NOT RENDER THE BIDDER AN UNQUALIFIED CONTRACTOR FOR THE PERFORMANCE OF THE WORK--- WHETHER THE WORK BE CHARGEABLE TO REGULAR APPROPRIATIONS OR TO APPROPRIATIONS MADE AVAILABLE PURSUANT TO THE TERMS OF THE NATIONAL INDUSTRIAL RECOVERY ACT.

COMPTROLLER GENERAL MCCARL TO THE ARCHITECT OF THE CAPITOL, AUGUST 18, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 15, 1934, WITH INCLOSURES, TO THE EFFECT THAT UNDER DATE OF AUGUST 3, 1934, THERE WERE RECEIVED AND OPENED FIVE BIDS IN THE AMOUNTS OF $46,700 SUBMITTED BY D. CATALANO AND SON; $51,400 SUBMITTED BY S. D. MOSES; $55,472 SUBMITTED BY TEMPLE CONSTRUCTION CORPORATION; $59,664 SUBMITTED BY BIRCHETT AND ATKINS, INC.; AND $67,300 SUBMITTED BY JOHN MCSHAIN, INC., FOR CONSTRUCTION AND SERVICE WORK UNDER SECOND STREET SE., IN CONNECTION WITH THE CONSTRUCTION OF AN ANNEX TO THE LIBRARY OF CONGRESS; AND THAT WHILE CATALANO AND SON, THE LOW BIDDER, IS APPARENTLY OTHERWISE QUALIFIED, THIS COMPANY CONSTRUCTED THE PHELPS TRADE SCHOOL FOR THE DISTRICT OF COLUMBIA AND DURING THE PERIOD OF CONSTRUCTION CONSIDERABLE DIFFICULTY WAS ENCOUNTERED IN ENFORCING WAGE RATES AS REQUIRED BY THE ACT OF MARCH 3, 1931, 46 STAT. 1494, THE MATTER BEING FINALLY ADJUSTED BY THE CONTRACTOR REFUNDING AMOUNTS TO THE INDIVIDUAL CRAFTSMEN EMPLOYED ON THE WORK TO BRING THEIR PAYMENTS UP TO THE AMOUNT REQUIRED BY THE PREVAILING WAGE RATES. IN VIEW OF CERTAIN PROTESTS AGAINST THE ACCEPTANCE OF THE PROPOSAL SUBMITTED BY D. CATALANO AND SON FOR THE PERFORMANCE OF THE WORK IN QUESTION BECAUSE OF THE CONDUCT OF THE COMPANY IN THE MATTER OF WAGE RATES UNDER THE CONTRACT FOR THE CONSTRUCTION OF THE PHELPS TRADE SCHOOL, YOU REQUEST DECISION WHETHER YOU WOULD BE TAKING PROPER ACTION IN ACCEPTING THE BID OF THE SAID COMPANY FOR THE PERFORMANCE OF THE WORK IN QUESTION.

THE LEGAL REQUIREMENTS AND THE PROPER PROCEDURE TO BE FOLLOWED UNDER THE AFORESAID ACT OF MARCH 3, 1931, AND THE EXECUTIVE ORDER OF JANUARY 19, 1932, HAVE BEEN STATED IN MY DECISION OF MAY 4, 1933, 12 COMP. GEN. 615, 618, WHICH IS APPLICABLE TO CONTRACTS IN EXCESS OF $5,000 IN AMOUNT FOR THE CONSTRUCTION, ALTERATION, AND/OR REPAIR OF ANY PUBLIC BUILDING. HOWEVER, THE CONSTRUCTION OF A TUNNEL UNDER SECOND STREET SE., APPARENTLY TO CONNECT THE LIBRARY OF CONGRESS AND THE NEW ANNEX THERETO IS NOT THE CONSTRUCTION, ALTERATION, OR REPAIR OF A PUBLIC BUILDING WITHIN THE TERMS OF THE ACT OF MARCH 3, 1931. SEE 7 COMP. GEN. 57; 10 ID. 499.

IT IS NOT DISCLOSED IN YOUR SUBMISSION OF AUGUST 15, 1934, WHETHER THIS WORK IS TO BE CHARGED TO REGULAR APPROPRIATIONS WHERE THERE WOULD BE USED STANDARD FORM NO. 23, STANDARD GOVERNMENT FORM OF CONSTRUCTION CONTRACT, AND TO WHICH WOULD BE APPLICABLE IN PROPER CASES THE ACT OF MARCH 3, 1931, AND THE EXECUTIVE ORDER OF JANUARY 19, 1932, OR WHETHER THE COST IS TO BE CHARGED TO FUNDS MADE AVAILABLE PURSUANT TO THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 195 ET SEQ., WHERE THERE WOULD BE APPLICABLE SECTION 206 OF SAID ACT AND P.W.A. FORM NO. 51, UNITED STATES GOVERNMENT FORM OF CONTRACT FOR FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS PROJECTS, CONTAINING IN ARTICLE 18 A REQUIREMENT FOR THE PAYMENT OF CERTAIN RATES OF WAGES AS THEREIN STATED AND A PROVISION IN ARTICLE 16 (E) THAT:

THE CONTRACTING OFFICER MAY WITHHOLD FROM THE CONTRACTOR SO MUCH OF ACCRUED PAYMENTS AS MAY BE NECESSARY TO PAY TO LABORERS OR MECHANICS EMPLOYED BY THE CONTRACTOR OR ANY SUBCONTRACTOR ON THE WORK, THE DIFFERENCE BETWEEN THE RATE OF WAGES REQUIRED BY THIS CONTRACT TO BE PAID TO LABORERS OR MECHANICS ON THE WORK AND THE RATE OF WAGES ACTUALLY PAID TO SUCH LABORERS OR MECHANICS.

THE FACT THAT D. CATALANO AND SON MAY HAVE HAD CONTROVERSIES WITH ITS EMPLOYEES IN CONNECTION WITH THE CONSTRUCTION OF THE PHELPS TRADE SCHOOL FOR THE DISTRICT OF COLUMBIA WHICH RESULTED IN HEARINGS BEFORE THE DISTRICT OF COLUMBIA OFFICIALS AND A REQUIREMENT, MET BY THE CONTRACTOR, THAT THERE BE PAID TO SUCH EMPLOYEES SUFFICIENT AMOUNTS TO BRING THEIR PAYMENTS UP TO THE AMOUNT REQUIRED BY THE PREVAILING WAGE LAW, DOES NOT RENDER D. CATALANO AND SON AN UNQUALIFIED CONTRACTOR FOR THE PERFORMANCE OF THIS WORK--- WHETHER THE WORK BE CHARGEABLE TO REGULAR APPROPRIATIONS OR TO APPROPRIATIONS MADE AVAILABLE PURSUANT TO THE TERMS OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933.

ACCORDINGLY, THERE IS ANSWERED IN THE AFFIRMATIVE YOUR QUESTION AS TO WHETHER YOU WOULD BE TAKING PROPER ACTION IN AWARDING THE CONTRACT FOR THE WORK TO D. CATALANO AND SON, IN THE ABSENCE OF ANY OTHER OBJECTION THERETO.