A-83163, FEBRUARY 9, 1937, 16 COMP. GEN. 748

A-83163: Feb 9, 1937

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THERE IS FOR INCLUSION THEREIN A STIPULATION SIMILAR TO THAT USED IN PUBLIC WORKS ADMINISTRATION CONTRACT FORM 51. AS FOLLOWS: THERE IS RESPECTFULLY SUBMITTED FOR DECISION THE QUESTION AS TO WHETHER THIS ADMINISTRATION IS AUTHORIZED TO EMBODY IN SPECIFICATIONS GOVERNING CONSTRUCTION WORK A PROVISION READING AS FOLLOWS: "THE CONTRACTOR SHALL TAKE ALL PRECAUTIONS NECESSARY FOR THE PROTECTION AGAINST INJURY OF ALL PERSONS ENGAGED AT THE SITE IN THE PERFORMANCE OF THE CONTRACT. WHILE THE REQUIREMENT IN QUESTION SEEMS TO BE DESIRABLE FROM A HUMANITARIAN STANDPOINT IN THAT IT IS DESIGNED FOR THE PURPOSE OF REQUIRING CONTRACTORS TO EMPLOY CERTAIN SPECIFIED PRECAUTIONARY MEASURES DESIGNED TO PROTECT LABORERS.

A-83163, FEBRUARY 9, 1937, 16 COMP. GEN. 748

CONSTRUCTION CONTRACTS - SPECIFICATION PROVISIONS FOR PROTECTION OF WORKMEN, ETC., AGAINST INJURY IN LIEU OF THE ADDITION TO STANDARD CONSTRUCTION CONTRACT FORMS OF AN INDEFINITE PROVISION, WITHOUT PENALTY PROVIDED, ATTEMPTING TO IMPOSE UPON A CONTRACTOR AN OBLIGATION TO TAKE ALL PRECAUTIONS NECESSARY FOR THE PROTECTION AGAINST INJURY OF ALL PERSONS ENGAGED AT THE SITE IN THE PERFORMANCE OF THE CONTRACT, WHICH UNDOUBTEDLY WOULD RESULT IN HIGHER BIDS, THERE IS FOR INCLUSION THEREIN A STIPULATION SIMILAR TO THAT USED IN PUBLIC WORKS ADMINISTRATION CONTRACT FORM 51, REQUIRING THE CONTRACTOR TO PROVIDE ADEQUATE WORKMEN'S COMPENSATION INSURANCE FOR THOSE COMING WITHIN THE PROTECTION OF SUCH LAWS AND EMPLOYERS' GENERAL LIABILITY INSURANCE AS TO THE OTHERS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, FEBRUARY 9, 1937:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JANUARY 18, 1937, AS FOLLOWS:

THERE IS RESPECTFULLY SUBMITTED FOR DECISION THE QUESTION AS TO WHETHER THIS ADMINISTRATION IS AUTHORIZED TO EMBODY IN SPECIFICATIONS GOVERNING CONSTRUCTION WORK A PROVISION READING AS FOLLOWS:

"THE CONTRACTOR SHALL TAKE ALL PRECAUTIONS NECESSARY FOR THE PROTECTION AGAINST INJURY OF ALL PERSONS ENGAGED AT THE SITE IN THE PERFORMANCE OF THE CONTRACT. HE SHALL COMPLY WITH ALL APPLICABLE PROVISIONS OF THE MANUAL OF ACCIDENT PREVENTION IN CONSTRUCTION ISSUED 1930 BY THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA.'

WHILE THE REQUIREMENT IN QUESTION SEEMS TO BE DESIRABLE FROM A HUMANITARIAN STANDPOINT IN THAT IT IS DESIGNED FOR THE PURPOSE OF REQUIRING CONTRACTORS TO EMPLOY CERTAIN SPECIFIED PRECAUTIONARY MEASURES DESIGNED TO PROTECT LABORERS, MECHANICS, AND OTHER EMPLOYEES FROM INJURY AND DEATH, DOUBT IS ENTERTAINED AS TO WHETHER THE EXERCISE OF THE DEGREE OF DISCRETION WHICH IS INVOLVED IN DETERMINING ON BEHALF OF THE GOVERNMENT THAT SUCH A REQUIREMENT IS ESSENTIAL AND SHOULD BE ADOPTED IS A PROPER FUNCTION OF THE OFFICIALS OF AN EXECUTIVE DEPARTMENT OF THE GOVERNMENT, IN VIEW OF THE RULING ON A SOMEWHAT SIMILAR PROPOSITION IN 10 COMP. GEN. 294.

WHILE IT IS IMPOSSIBLE TO STATE WHETHER THE INCLUSION OF THE PROVISION IN THE SPECIFICATIONS WILL RESULT IN AN INCREASE IN THE COST OF CONSTRUCTION, IT DOES NOT APPEAR THAT THE AMOUNT OF ANY INCREASE THAT MIGHT RESULT WOULD BE VERY GREAT, AND IT APPEARS THAT THE HUMANITARIAN CONSIDERATIONS WOULD JUSTIFY THE SAME.

OF COURSE, THE UNITED STATES AS A HUMANITARIAN MEASURE SHOULD BE INTERESTED IN THE PROTECTION OF LIFE AND LIMB OF EMPLOYEES IN CONNECTION WITH BUILDING PROJECTS, BUT IT WOULD SEEM THAT UNDER EXISTING CONDITIONS CONTRACTORS SHOULD LIKEWISE BE SO INTERESTED THAT THEY VOLUNTARILY WOULD TAKE ALL PRECAUTION NECESSARY TO REDUCE TO A MINIMUM DANGERS TO LIFE AND LIMB OF ITS EMPLOYEES ENGAGED AT THE SITE IN THE PERFORMANCE OF A CONTRACT. WHILE THE PROPOSED PROVISION WHICH YOU HAVE QUOTED IN THE ABOVE LETTER WOULD BE MANDATORY ON THE CONTRACTOR IF EMBODIED IN THE SPECIFICATIONS, THERE IS NOTHING STATED AS A PENALTY IF THE CONTRACTOR SHOULD FAIL TO PERFORM ITS MANDATORY DUTY. ALSO, THE DUTY ATTEMPTED TO BE IMPOSED UPON THE CONTRACTOR BY SUCH A PROVISION IS MORE OR LESS INDEFINITE, AND, NO DOUBT WOULD RESULT IN HIGHER BIDS, AND IT IS NOT BELIEVED THAT CHARGES AGAINST APPROPRIATIONS AVAILABLE FOR THE CONSTRUCTION OF THE BUILDINGS SHOULD BE INCREASED IN ANY AMOUNT DUE TO THE ATTEMPT TO IMPOSE UPON THE CONTRACTOR AN OBLIGATION WHICH IT SHOULD PERFORM AS A HUMANITARIAN MEASURE AND AS TO WHICH NO PENALTIES OR DEDUCTIONS ARE PROVIDED IN THE EVENT THE CONTRACTOR SHOULD DISREGARD THE TERMS OF ITS CONTRACT IN THAT RESPECT.

IT IS BELIEVED THAT THE END AND OBJECT SOUGHT TO BE ACCOMPLISHED MAY BE MUCH MORE SATISFACTORILY ACCOMPLISHED BY THE USE OF A STIPULATION IN THE SPECIFICATIONS TO FORM A PART OF THE STANDARD CONSTRUCTION CONTRACT SIMILAR TO ARTICLE 21 OF P.W.A. FORM 51 APPROVED BY THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS AND REVISED OCTOBER 1, 1935. SAID ARTICLE IS AS OLLOWS:

ART. 21. COMPENSATION INSURANCE.--- THE CONTRACTOR SHALL PROVIDE ADEQUATE WORKMEN'S COMPENSATION INSURANCE FOR ALL LABOR EMPLOYED ON THE PROJECT WHO MAY COME WITHIN THE PROTECTION OF SUCH LAWS AND SHALL PROVIDE, WHERE PRACTICABLE, EMPLOYERS' GENERAL LIABILITY INSURANCE FOR THE BENEFIT OF HIS EMPLOYEES NOT PROTECTED BY SUCH COMPENSATION LAWS, AND PROOF OF SUCH INSURANCE SATISFACTORY TO THE CONTRACTING OFFICER SHALL BE GIVEN.