A-94310, MAY 12, 1938, 17 COMP. GEN. 937

A-94310: May 12, 1938

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ARE MANDATORY AND REQUIRE THAT EVERY PUBLIC CONTRACT WHICH MAY REQUIRE OR INVOLVE EMPLOYMENT OF LABORERS OR MECHANICS SHALL CONTAIN THE 8-HOUR LABOR PROVISION. " ITS PROVISIONS ARE FOR APPLICATION WHETHER THE CONTRACTS BE LARGE OR SMALL. WAS FOR FURNISHING AND INSTALLING APPROXIMATELY 3. THE CONTRACT INCLUDED THE FOLLOWING PROVISION: THE CONTRACTOR AND SUBCONTRACTOR WILL BE BOUND BY THE ATTACHED REGULATIONS OF THE SECRETARY OF THE TREASURY AND THE SECRETARY OF THE INTERIOR RELATIVE TO WAGES. THE CONTRACT FORWARDED TO THIS OFFICE DOES NOT HAVE ATTACHED ANY REGULATIONS OF THE SECRETARY OF THE TREASURY AND THE SECRETARY OF THE INTERIOR RELATIVE TO WAGES. THERE IS NO SHOWING WHAT WAGE REGULATIONS BOUND THE CONTRACTOR.

A-94310, MAY 12, 1938, 17 COMP. GEN. 937

CONTRACTS INVOLVING EMPLOYMENT OF LABORERS OR MECHANICS - INCLUSION OF 8 HOUR LAW PROVISIONS THE PROVISIONS OF THE 8-HOUR LAW, ACT OF JUNE 19, 1912, 37 STAT. 137, ARE MANDATORY AND REQUIRE THAT EVERY PUBLIC CONTRACT WHICH MAY REQUIRE OR INVOLVE EMPLOYMENT OF LABORERS OR MECHANICS SHALL CONTAIN THE 8-HOUR LABOR PROVISION, WITH CORRELATIVE PENALTY FOR ITS VIOLATION, IN ALL CASES NOT EXPRESSLY EXCEPTED, AND AS THE LAW DOES NOT LIMIT ITS APPLICATION TO ANY MINIMUM AMOUNTS SO LONG AS SUCH CONTRACTS "MAY REQUIRE OR INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS," ITS PROVISIONS ARE FOR APPLICATION WHETHER THE CONTRACTS BE LARGE OR SMALL, FORMAL OR INFORMAL.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, MAY 12, 1938:

THERE HAS BEEN BROUGHT TO MY ATTENTION CONTRACT A1S-16323, DECEMBER 23, 1937, U.S.D.A. NO. 985, WITH THE SANITARY FLOORS CORPORATION, WASHINGTON, D.C.

THE CONTRACT, ON UNITED STATES STANDARD FORM NO. 33 (SHORT FORM CONTRACT) CONSISTING OF INVITATION DATED NOVEMBER 26, 1937, BID DATED DECEMBER 15, AND ACCEPTANCE OF DECEMBER 23, 1937, WAS FOR FURNISHING AND INSTALLING APPROXIMATELY 3,300 SQUARE FEET OF HEAVY DUTY ASPHALT TILE FLOORING IN THE MAIN LABORATORY, ZOOLOGICAL DIVISION, BUREAU OF ANIMAL INDUSTRY, NATIONAL AGRICULTURAL RESEARCH CENTER, BELTSVILLE, MD., FOR THE CONTRACT PRICE OF $739, AND THE CONTRACTOR EXECUTED BOND IN THE FULL AMOUNT OF THE CONTRACT PRICE WITH THE AMERICAN SURETY CO. OF NEW YORK AS SURETY. NOTICE TO PROCEED WITH THE WORK, RECEIVED BY THE CONTRACTOR MARCH 5, 1938, REQUIRED THE WORK OF FURNISHING AND INSTALLATION TO BE COMPLETED WITHIN 10 CALENDAR DAYS FROM THAT DATE.

THE CONTRACT INCLUDED THE FOLLOWING PROVISION:

THE CONTRACTOR AND SUBCONTRACTOR WILL BE BOUND BY THE ATTACHED REGULATIONS OF THE SECRETARY OF THE TREASURY AND THE SECRETARY OF THE INTERIOR RELATIVE TO WAGES.

HOWEVER, THE CONTRACT FORWARDED TO THIS OFFICE DOES NOT HAVE ATTACHED ANY REGULATIONS OF THE SECRETARY OF THE TREASURY AND THE SECRETARY OF THE INTERIOR RELATIVE TO WAGES, AND THERE IS NO SHOWING WHAT WAGE REGULATIONS BOUND THE CONTRACTOR.

THE CONTRACT CONTAINED NO STIPULATION FOR COMPLIANCE BY THE CONTRACTOR WITH THE ACT OF JUNE 19, 1912, 37 STAT. 137, WHICH PROVIDES IN PERTINENT SUBSTANCE THAT EVERY CONTRACT ENTERED INTO TO WHICH THE UNITED STATES IS A PARTY, AND EVERY SUCH CONTRACT MADE FOR OR ON BEHALF OF THE UNITED STATES- -- SUBJECT TO CERTAIN EXCEPTIONS STATED IN THE STATUTE, WHICH ARE NOT HERE INVOLVED---

* * * WHICH MAY REQUIRE OR INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS SHALL CONTAIN A PROVISION THAT NO LABORER OR MECHANIC DOING ANY PART OF THE WORK CONTEMPLATED BY THE CONTRACT, IN THE EMPLOY OF THE CONTRACTOR OR ANY SUBCONTRACTOR CONTRACTING FOR ANY PART OF SAID WORK CONTEMPLATED, SHALL BE REQUIRED OR PERMITTED TO WORK MORE THAN EIGHT HOURS IN ANY ONE CALENDAR DAY UPON SUCH WORK; AND EVERY SUCH CONTRACT SHALL STIPULATE A PENALTY FOR EACH VIOLATION OF SUCH PROVISION IN SUCH CONTRACT OF FIVE DOLLARS FOR EACH LABORER OR MECHANIC FOR EVERY CALENDAR DAY IN WHICH HE SHALL BE REQUIRED OR PERMITTED TO LABOR MORE THAN EIGHT HOURS UPON SAID WORK; * * *.

IN REPLY TO OFFICE LETTER OF MARCH 24, 1938, REQUESTING EXPLANATION AS TO WHY THE PROVISIONS REQUIRED BY THE ABOVE-QUOTED STATUTE WERE NOT MADE PART OF THE SUBJECT CONTRACT, THERE WAS RECEIVED FROM THE CHIEF, DIVISION OF PURCHASE, SALES, AND TRAFFIC, DEPARTMENT OF AGRICULTURE, A LETTER OF APRIL 5, 1938, AS FOLLOWS:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER (A-JS-CE) DATED MARCH 24, 1938, WITH REFERENCE TO THE NONINCLUSION OF THE REQUIREMENTS OF THE EIGHT-HOUR LAW OF JUNE 19, 1912, IN CONTRACT A1S-16323, DATED DECEMBER 23, 1937, U.S.D.A. 985, WITH THE SANITARY FLOORS CORPORATION, WASHINGTON, D.C., FOR THE FURNISHING AND INSTALLING OF APPROXIMATELY 3,300 SQUARE FEET OF HEAVY DUTY ASPHALT TILE FLOORING IN A LABORATORY BUILDING OF THE DEPARTMENT AT BELTSVILLE, MARYLAND, IN THE AMOUNT OF $739.00.

THIS PROCUREMENT WAS ADVERTISED FOR ON U.S. STANDARD FORM 33 (REVISED), WHICH SHORT FORM OF BID AND ACCEPTANCE IS GENERALLY USED BY THE DEPARTMENT IN ADVERTISING FOR SMALL CONSTRUCTION JOBS AND SMALL JOBS OF MIXED CONSTRUCTION AND SUPPLY LIKE THE CASE UNDER CONSIDERATION. THE AUTHORITY FOR THE USE OF PROPOSAL AND ACCEPTANCE WITHOUT THE EXECUTION OF A MORE FORMAL CONTRACT AND BOND FOR SUCH MINOR REPAIRS, ETC., TO PUBLIC WORKS OR PUBLIC BUILDINGS, NOT IN EXCESS OF $500.00, WAS GRANTED THIS DEPARTMENT BY COMP. GEN. DEC. (A 11774) DATED NOVEMBER 23, 1925. BY COMP. GEN. DEC. A- 41453, DATED MARCH 25, 1932, THE COMPTROLLER GENERAL STATED THAT "NO OBJECTION WILL BE MADE AT THIS TIME TO INCREASING TO $1,000 FROM $500, STATED IN 5 COMP. GEN. 376, THE AMOUNT OF INFORMAL CONTRACTS FOR MINOR CONSTRUCTION WORK, REPAIRS, ETC., WHICH INFORMAL CONTRACTS DO NOT REQUIRE PERFORMANCE BONDS.'

SINCE THE ENACTMENT OF PUBLIC, NO. 403, 74TH CONGRESS, APPROVED AUGUST 30, 1935, REQUIRING PREDETERMINATION OF WAGES FOR MECHANICS AND LABORERS ON CONTRACTS FOR THE CONSTRUCTION, ALTERATION, AND/OR REPAIR OF PUBLIC BUILDINGS OR PUBLIC WORK IN EXCESS OF $2,000, THE REGULATIONS OF THE DEPARTMENT HAVE BEEN CHANGED AS FOLLOWS:

"A FORMAL CONTRACT SHALL BE REQUIRED FOR THE ERECTION OR REPAIR OF ANY BUILDING, OR ADDITION THERETO, WHENEVER THE AMOUNT INVOLVED IS IN EXCESS OF $2,000, AND THE WORK IS TO BE PERFORMED BY A CONTRACTOR. IT SHALL BE DISCRETIONARY WITH EACH BUREAU WHETHER THIS REGULATION SHALL APPLY WITH RESPECT TO AMOUNTS OF $2,000 OR LESS, WHERE A LESS FORMAL AGREEMENT ONLY IS REQUIRED.'

AS AFORESAID, THE DEPARTMENT HAS MANY SMALL REPAIR AND CONSTRUCTION JOBS, ALSO INSTALLATIONS OF EQUIPMENT INVOLVING LABOR, AND HAS GENERALLY USED STANDARD FORM 33 (REVISED), WHERE THE AMOUNT OF THE CONTRACT IS NOT IN EXCESS OF $2,000, WITHOUT CARRYING INTO THE SPECIFICATIONS THE EIGHT-HOUR LAW AS SET FORTH IN ARTICLE 11 OF STANDARD FORM 23, REVISED (CONSTRUCTION CONTRACT). IF, HOWEVER, YOUR OFFICE IS OF THE OPINION THAT THE PROVISIONS OF THE EIGHT-HOUR LAW ARE FOR APPLICATION IN SUCH CASES, AND YOU SO ADVISE, THE DEPARTMENT'S PROCEDURE IN THE PREMISES WILL BE IMMEDIATELY AMENDED TO CONFORM TO YOUR FINDING.

THE DECISION OF NOVEMBER 23, 1925, 5 COMP. GEN. 376, CITED IN THE LETTER, SUPRA, HAD PARTICULAR REFERENCE TO THE AMENDMENT OF PARAGRAPH 73 OF THE FISCAL REGULATIONS OF THE DEPARTMENT OF AGRICULTURE WHICH, AS IT THEN STOOD, REQUIRED THAT A FORMAL CONTRACT AND BOND BE EXECUTED FOR ALL CONSTRUCTION WORK FOR WHICH BIDS WERE ACCEPTED, IRRESPECTIVE OF THE AMOUNT INVOLVED. THE THEN SECRETARY OF AGRICULTURE WAS INFORMED THAT IN VIEW OF CERTAIN DIFFICULTIES ENCOUNTERED, THIS OFFICE WOULD NOT OBJECT TO THE AMENDMENT OF PARAGRAPH 73, FISCAL REGULATIONS, TO PROVIDE FOR ACCEPTANCE OF BIDS ON CONSTRUCTION OR REPAIR WORK OF $500, OR LESS, WITHOUT EXECUTION OF A FORMAL CONTRACT OR REQUIREMENT OF PERFORMANCE BOND, THE PROPOSAL AND ACCEPTANCE--- INFORMAL CONTRACT- - TO FORM THE AGREEMENT IN THE ABSENCE OF THE FORMAL INSTRUMENT THERETOFORE REQUIRED IN ALL INSTANCES. THE DECISION A-41453, DATED MARCH 25, 1932, MERELY EXTENDED THE APPLICATION OF THE PREVIOUS DECISION TO AMOUNTS NOT IN EXCESS OF $1,000, WITHOUT OTHER EFFECT ON SAID DECISION.

THE DECISIONS OF THIS OFFICE STATED IN THE DEPARTMENT'S LETTER OF APRIL 5, 1938, MERELY HELD THAT, FOR REASONS CONSIDERED AS JUSTIFYING SUCH PROCEDURE, INFORMAL CONTRACTS WITHOUT BOND--- NOW UNITED STATES STANDARD FORM NO. 33--- AS DISTINGUISHED FROM FORMAL CONTRACTS--- NOW STANDARD FORM NO. 23--- CONSTRUCTION CONTRACT--- WITH BOND MIGHT BE RESORTED TO IN CASES INVOLVING LESS THAN $1,000. THOSE DECISIONS HAD NO REFERENCE TO THE REQUIREMENTS OF THE ACT OF JUNE 19, 1912, HERE FOR CONSIDERATION, AND NOTHING IN SAID DECISIONS PROPERLY COULD BE INTERPRETED AS COUNTENANCING ANY DISREGARD OF THE REQUIREMENTS OF SAID ACT. THE PROVISIONS OF THE ACT OF JUNE 19, 1912, REFERRED TO AS THE 8 HOUR LAW, ARE MANDATORY AND REQUIRE THAT EVERY PUBLIC CONTRACT WHICH MAY REQUIRE OR INVOLVE EMPLOYMENT OF LABORERS OR MECHANICS SHALL CONTAIN THE 8-HOUR LABOR PROVISION WITH CORRELATIVE PENALTY FOR ITS VIOLATION, IN ALL CASES NOT EXPRESSLY ACCEPTED IN THE STATUTE ITSELF. SEE ALSO THE ACT OF MARCH 4, 1917, 39 STAT. 1192, PROVIDING THAT THE PRESIDENT, IN CASE OF NATIONAL EMERGENCY, IS AUTHORIZED TO SUSPEND PROVISIONS OF LAW "PROHIBITING MORE THAN 8 HOURS LABOR IN ANY 1 DAY OF PERSONS ENGAGED UPON WORK COVERED BY CONTRACTS WITH THE UNITED STATES," PROVIDED THE WAGES OF SUCH PERSONS SHALL BE COMPUTED ON A BASIC DAY RATE OF 8 HOURS' WORK, WITH OVERTIME RATES TO BE PAID FOR AT NOT LESS THAN TIME AND ONE-HALF TIME FOR ALL HOURS' WORK IN EXCESS OF 8 HOURS. FAR AS IS KNOWN TO THIS OFFICE, THE LATTER ACT CONSTITUTES THE ONLY EXCEPTION TO THE REQUIREMENTS OF THE 8-HOUR LAW. THE 8-HOUR LAW DOES NOT LIMIT ITS APPLICATION TO CONTRACTS INVOLVED TO ANY MINIMUM AMOUNTS SO LONG AS SUCH CONTRACTS "MAY REQUIRE OR INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS," AND IT WOULD APPEAR TO BE UNQUESTIONABLY APPLICABLE TO SUCH CONTRACTS WHETHER LARGE OR SMALL, FORMAL OR INFORMAL.

THE INSTANT CONTRACT OBLIGATED THE CONTRACTOR TO FURNISH AND INSTALL APPROXIMATELY 3,300 SQUARE FEET OF HEAVY DUTY ASPHALT TILE FLOORING WITHIN A PERIOD OF 10 DAYS, AND DOUBTLESS DID REQUIRE THE EMPLOYMENT OF LABORERS TO COMPLETE THE WORK WITHIN THE CONTRACT TIME. THEREFORE, THE ACT OF JUNE 19, 1912, WAS APPLICABLE AND THE CONTRACT SHOULD HAVE EXCLUDED A PROVISION REQUIRING ITS OBSERVANCE. IN VIEW OF THE PLAIN MANDATE OF THE STATUTE, THERE APPEARS NO LEGAL AUTHORITY FOR ANY OFFICER OR AGENCY OF THE GOVERNMENT TO ENTER INTO A CONTRACT FALLING WITHIN ITS PROVISIONS WITHOUT REQUIRING COMPLIANCE WITH ITS TERMS.

IT FOLLOWS THAT THE ADMINISTRATIVE PRACTICE OUTLINED IN THE LAST PARAGRAPH OF THE DEPARTMENT'S LETTER IS IN ERROR AND SHOULD BE CORRECTED AS SUGGESTED IN THE FINAL SENTENCE. WHILE THE SUBJECT CONTRACT AND SIMILAR CONTRACTS HERETOFORE MADE BY YOUR DEPARTMENT INVOLVING AMOUNTS OF LESS THAN $1,000 WILL NOT BE FURTHER QUESTIONED IN THIS RESPECT, SUCH CONTRACTS HEREAFTER AWARDED, WHETHER FORMAL OR INFORMAL, SHOULD REQUIRE ADHERENCE BY THE CONTRACTOR AND SUBCONTRACTOR/S) TO THE 8-HOUR LABOR PROVISIONS OF THE ACT OF JUNE 19, 1912, AND YOU ARE SO INFORMED.