A-97726, OCTOBER 14, 1938, 18 COMP. GEN. 337

A-97726: Oct 14, 1938

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IS APPLICABLE TO EVERY PUBLIC CONTRACT OTHERWISE WITHIN ITS TERMS WHICH MAY REQUIRE THE EMPLOYMENT OF LABOR BY HAND OR TOOLS FOR ITS PERFORMANCE. NOT INVOLVING SUCH ARTICLES AS ARE USUALLY BOUGHT IN THE OPEN-MARKET. - BUT SUCH AS ARE MADE TO ORDER TO SUIT PARTICULAR NEEDS. " ARE NOT WITHIN THE EXCEPTIONS TO THE EIGHT-HOUR WORK LIMITATION LAW OF JUNE 19. THE FACT THAT THE ARTICLES ARE PURCHASED FOR. ARE SUBJECT TO THE EIGHT-HOUR WORK LIMITATION LAW OF JUNE 19. SUCH CONTRACTS ARE NOT WITHIN THE MEANING OF THE STATUTE. CLEANING UP THE AREA FROM WHICH THE STRUCTURES ARE REMOVED. ARE SUBJECT TO THE EIGHT-HOUR WORK LIMITATION LAW OF JUNE 19. REMOVAL OF THE GOVERNMENT-OWNED STRUCTURES ARE NOT WITHIN THE MEANING OF THE STATUTE.

A-97726, OCTOBER 14, 1938, 18 COMP. GEN. 337

CONTRACTS - EIGHT-HOUR LAW, AND "KICK BACK" LAW, APPLICABILITY GENERALLY THE EIGHT-HOUR WORK LIMITATION LAW OF JUNE 19, 1912, 37 STAT. 137, IS APPLICABLE TO EVERY PUBLIC CONTRACT OTHERWISE WITHIN ITS TERMS WHICH MAY REQUIRE THE EMPLOYMENT OF LABOR BY HAND OR TOOLS FOR ITS PERFORMANCE, AND WHERE DOUBT EXISTS AS TO WHETHER THERE MAY BE INVOLVED SUCH EMPLOYMENT THE REQUIREMENTS OF THE LAW SHOULD BE INSERTED IN THE CONTRACT. CONTRACTS FOR FURNISHING "OPTICAL, ORTHOPEDIC, AND PROSTHETIC APPLIANCES, SUPPLIES, ETC., FOR THE VETERANS' ADMINISTRATION," AND FITTINGS, ADJUSTMENTS, AND REPAIRS TO SUCH APPLIANCES WHEN NEEDED, NOT INVOLVING SUCH ARTICLES AS ARE USUALLY BOUGHT IN THE OPEN-MARKET--- ALTHOUGH POSSIBLE OF SUCH PROCUREMENT--- BUT SUCH AS ARE MADE TO ORDER TO SUIT PARTICULAR NEEDS, AND NOT BEING PURCHASES FOR STOCK USE OR INVOLVING "THE PURCHASE OF SUPPLIES BY THE GOVERNMENT," ARE NOT WITHIN THE EXCEPTIONS TO THE EIGHT-HOUR WORK LIMITATION LAW OF JUNE 19, 1912, 37 STAT. 137, AND THE FACT THAT THE ARTICLES ARE PURCHASED FOR, AND PAID FOR IN WHOLE OR IN PART BY VETERANS, DOES NOT EXEMPT THE CONTRACTS FROM THE REQUIREMENTS OF THE STATUTE. CONTRACTS FOR OFFICE MACHINE REPAIRS, ELEVATOR INSPECTION SERVICE, LAUNDRY SERVICE, CLEANING, PRESSING AND ALTERING CLOTHING, UNDERTAKING SERVICE, SHARPENING INSTRUMENTS, TUNING PIANOS, SLAUGHTERING ANIMALS, MILLING SERVICE, CUTTING HAY AND THRESHING GRAIN, DRAYAGE SERVICE AND REPAIRING GOVERNMENT EQUIPMENT WHICH INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS, AND NOT THE PERFORMANCE OF THE SERVICES WHOLLY BY THE CONTRACTOR IN PERSON, ARE SUBJECT TO THE EIGHT-HOUR WORK LIMITATION LAW OF JUNE 19, 1912, 37 STAT. 137, BUT THE WORK UNDER CONTRACTS FOR THE REMOVAL OF GARBAGE BEING MERELY INCIDENTAL TO THE SALE OF THE GARBAGE TO THE CONTRACTOR AND FOR HIS BENEFIT, SUCH CONTRACTS ARE NOT WITHIN THE MEANING OF THE STATUTE. CONTRACTS FOR THE DEMOLITION OF STRUCTURES, REMOVAL OF A PORTION THEREOF, AND CLEANING UP THE AREA FROM WHICH THE STRUCTURES ARE REMOVED, ARE SUBJECT TO THE EIGHT-HOUR WORK LIMITATION LAW OF JUNE 19, 1912, 37 STAT. 137, BUT CONTRACTS COVERING THE SALE, DEMOLITION, AND REMOVAL OF THE GOVERNMENT-OWNED STRUCTURES ARE NOT WITHIN THE MEANING OF THE STATUTE, THE WORK OF REMOVAL BEING MERELY INCIDENTAL TO THE SALE AND WHOLLY FOR THE BENEFIT OF THE CONTRACTOR. CONTRACTS FOR SUPPLIES OR EQUIPMENT TO BE INSTALLED BY THE CONTRACTOR WHERE THE ARTICLE OR EQUIPMENT IS PURCHASED IN A FINISHED STATE AT A FIXED PRICE, AND INSTALLATION IS MERELY INCIDENTAL TO THE PURCHASE, ARE NOT SUBJECT TO THE EIGHT-HOUR WORK LIMITATION LAW OF JUNE 19, 1912, 37 STAT. 137, BUT WHEN THE INSTALLATION IS SO PART AND PARCEL OF THE CONTRACT AS TO INCREASE THE COST OF THE ARTICLE MATERIALLY, AND IS OF SUCH DURATION AS TO REQUIRE OR INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS OVER A SUBSTANTIAL PERIOD OF TIME, THE REQUIREMENTS OF THE STATUTE ARE FOR APPLICATION. THE QUESTION WHETHER CONTRACTS SUBJECT TO THE EIGHT-HOUR WORK LIMITATION LAW OF JUNE 19, 1912, 37 STAT. 137, ARE LIKEWISE SUBJECT TO THE REQUIREMENTS OF THE "CRIMINAL LAW" OF JUNE 13, 1934, 48 STAT. 948, KNOWN AS THE "KICK BACK" LAW, AND TO THE REGULATIONS PROMULGATED THEREUNDER, IS NOT FOR DETERMINATION BY THE GENERAL ACCOUNTING OFFICE, BUT IT WILL BE NOTED THAT THE STATUTE REQUIRES THAT THE REGULATIONS ISSUED THEREUNDER SHALL BE REASONABLE, AND THAT IT DOES NOT REQUIRE THAT IT, OR ANY REFERENCE TO ITS PROVISIONS, BE INCORPORATED IN CONTRACTS--- VIOLATIONS OF THE STATUTE BEING PUNISHABLE INDEPENDENTLY OF ANY CONTRACT UNDERTAKING--- NOR THAT THE STATUTORY REQUIREMENT OF FURNISHING WEEKLY AFFIDAVITS OF THE AMOUNT PAID TO EACH EMPLOYEE BE APPLIED TO CONTRACTS WHICH DO NOT REQUIRE THE ENTIRE WORKING TIME OF ALL EMPLOYEES OF THE CONTRACTOR OR SUBCONTRACTOR ENGAGED ON SUCH WORK AS IS THE CASE IN MANY MISCELLANEOUS GOVERNMENT CONTRACTS THE EMPLOYEES' SERVICES UNDER WHICH ARE ONLY PART- TIME, INCIDENTAL TO, AND COMMINGLED WITH, THE GENERAL BUSINESS OF THE CONTRACTOR.

ACTING COMPTROLLER GENERAL ELLIOTT TO ADMINISTRATOR OF VETERANS' AFFAIRS, OCTOBER 14, 1938:

YOUR LETTER OF AUGUST 16, 1938, IS AS FOLLOWS:

UNDER DATE OF JUNE 23, 1938, THE CONTRACT EXAMINING SECTION OF YOUR OFFICE ADDRESSED A LETTER TO THE DIRECTOR OF FINANCE, VETERANS' ADMINISTRATION, CALLING ATTENTION TO THE FACT THAT THE FOLLOWING LISTED CONTRACTS PROVIDE FOR REPAIRS AND ALTERATIONS REQUIRING THE USE OF LABORERS AND MECHANICS AND REQUESTING THAT AN EXPLANATION BE FURNISHED OF THE OMISSION FROM THE CONTRACTS OF THE PROVISIONS OF THE EIGHT-HOUR LAW, 37 STAT. 137:

VA34R-1283 OMAHA BRACE SHOP

VA34R-1284 LINCOLN BRACE AND SPLINT COMPANY

VA34R-1285 TWIN CITY ARTIFICIAL LIMB COMPANY

VA34R-1287 NATIONAL LIMBS, INC.

VA34R-1289 AMERICAN OPTICAL COMPANY

VA34R-1290 A. H. BOSWORTH

SECTION 2 OF THE ABOVE CITED LAW EXCEPTS CONTRACTS FOR THE PURCHASE OF SUPPLIES BY THE GOVERNMENT, WHETHER MANUFACTURED TO CONFORM TO PARTICULAR SPECIFICATIONS OR NOT, OR FOR SUCH MATERIALS OR ARTICLES AS MAY USUALLY BE BOUGHT IN OPEN MARKET, EXCEPT ARMOR AND ARMOR PLATE, WHETHER MADE TO CONFORM TO PARTICULAR SPECIFICATIONS OR NOT.

THE CONTRACTS LISTED ABOVE ARE PRIMARILY FOR FURNISHING MISCELLANEOUS ORTHOPEDIC SUPPLIES SUCH AS SUPPORTING BELTS, BRACES, ELASTIC STOCKINGS,OPTICAL LENSES, ETC., BEING SUPPLIES FOR WHICH CONTRACTS ARE GENERALLY MADE BUT WHICH MAY ALSO BE BOUGHT IN THE OPEN MARKET. THE REPAIRS AND ALTERATIONS COVERED BY THESE CONTRACTS ARE MINOR SERVICES TO BE PERFORMED AT THE CONTRACTOR'S PLACE OF BUSINESS WHEREVER LOCATED AND ARE SO CLOSELY ALLIED WITH THE FURNISHING OF THE SUPPLIES INDICATED IN THE CONTRACTS THAT IT DOES NOT APPEAR REASONABLE TO CONSIDER THEM AS INVOLVING THE EMPLOYMENT OF LABORERS OR MECHANICS AS CONTEMPLATED BY 37 STAT. 137. FURTHERMORE, THE REPAIRS AND ALTERATIONS COVERED BY THE CONTRACTS, ALTHOUGH PAID FOR BY THE GOVERNMENT, ARE FOR ORTHOPEDIC APPLIANCES WHICH ARE THE PROPERTY OF THE RESPECTIVE BENEFICIARIES FOR WHOM THEY WERE PURCHASED BY THE GOVERNMENT.

CONTRACTS FOR THE ABOVE SUPPLIES INCLUDING LABOR FOR REPAIRS AND ALTERATIONS HAVE BEEN MADE FOR APPROXIMATELY TWENTY YEARS WITHOUT REGARD TO THE PROVISIONS OF THE EIGHT-HOUR LAW AND NO QUESTION HAS EVER BEEN RAISED BY YOUR OFFICE REGARDING THE APPLICATION OF THIS LAW TO THESE CONTRACTS PRIOR TO THE RECEIPT OF LETTER FROM THE CONTRACT EXAMINING SECTION DATED JUNE 23, 1938.

YOUR DECISION IS REQUESTED AS TO WHETHER THE PROVISIONS OF THE EIGHT HOUR LAW, 37 STAT. 137, SHOULD BE INCORPORATED IN THE CONTRACTS LISTED ABOVE AND IN SIMILAR CONTRACTS FOR ORTHOPEDIC SUPPLIES AND SERVICES.

ALTHOUGH THE QUESTION HAS NOT BEEN RAISED BY YOUR OFFICE IN REGARD TO THE APPLICATION OF THE EIGHT-HOUR LAW TO THE FOLLOWING CLASSES OF CONTRACTS, YOUR DECISION IS ALSO REQUESTED AS TO WHETHER THE PROVISIONS OF SAID LAW SHOULD BE INCORPORATED IN CONTRACTS FOR OFFICE MACHINE REPAIRS, ELEVATOR INSPECTION SERVICE, LAUNDRY SERVICE, CLEANING, PRESSING, AND ALTERING CLOTHING, REMOVAL OF GARBAGE, UNDERTAKING SERVICE AND CONTRACTS FOR SUCH MISCELLANEOUS SERVICES AS SHARPENING INSTRUMENTS, TUNING PIANOS, SLAUGHTERING ANIMALS, CUTTING HAY, THRESHING GRAIN, MILLING GRAIN, DRAYAGE SERVICE, RAZING GOVERNMENT OWNED STRUCTURES, AND REPAIRING GOVERNMENT EQUIPMENT.

A DESCRIPTION OF THESE CONTRACTS FOLLOWS:

OFFICE MACHINE REPAIRS.--- THESE CONTRACTS COVER CLEANING, REPAIRING, AND OVERHAULING OFFICE MACHINES AT HOURLY RATES, TOGETHER WITH THE FURNISHING OF NECESSARY PARTS, THE WORK TO BE PERFORMED AT THE VETERANS' ADMINISTRATION ACTIVITY.

ELEVATOR INSPECTION SERVICE.--- THESE CONTRACTS COVER EXAMINATION OF ELEVATORS AT THE VETERANS' ADMINISTRATION ACTIVITY, TEST OF GOVERNORS AND ALL SAFETY DEVICES, AND FURNISHING OF REPORT OF INSPECTION AT A DEFINITE CHARGE PER YEAR.

LAUNDRY SERVICE.--- THESE CONTRACTS COVER THE FURNISHING OF LAUNDRY SERVICE BY COMMERCIAL LAUNDRIES; THAT IS, COLLECTION OF SOILED CLOTHING, LINEN, ETC., AND RETURN OF THE FINISHED WORK TO VETERANS' ADMINISTRATION ACTIVITY AT A DEFINITE PRICE PER POUND OR PER PIECE.

CLEANING, PRESSING, AND ALTERING CLOTHING.--- THESE CONTRACTS COVER THE COLLECTION OF CLOTHING AND RETURN OF THE FINISHED WORK TO THE VETERANS' ADMINISTRATION ACTIVITY IN THE USUAL MANNER BY COMMERCIAL DRY CLEANERS AT A DEFINITE PRICE PER PIECE. THEY INCLUDE IN SOME INSTANCES MINOR REPAIRS AND ALTERATIONS. THE WORK IS PERFORMED AT CONTRACTOR'S ESTABLISHMENT.

REMOVAL OF GARBAGE.--- THESE CONTRACTS COVER THE REMOVAL OF GARBAGE ACCUMULATING AT THE VETERANS' ADMINISTRATION ACTIVITY, TOGETHER WITH PAYMENT THEREFOR BY THE CONTRACTOR AT A STIPULATED PRICE PER POUND, PER GALLON, OR IN SOME CASES AT A FLAT RATE PER MONTH.

UNDERTAKING SERVICE.--- THESE CONTRACTS COVER EMBALMING AND WHEN NECESSARY THE FURNISHING OF CASKETS, CLOTHING, ETC., CONDUCTING FUNERAL SERVICES AND OPENING AND CLOSING OF GRAVE. EMBALMING SERVICE IS SOMETIMES PERFORMED AT THE VETERANS' ADMINISTRATION ACTIVITY AND SOMETIMES AT THE UNDERTAKER'S PLACE OF BUSINESS. THE SERVICES OF OPENING AND CLOSING OF GRAVE ARE IN CONNECTION WITH BURIAL PLOTS NOT ON GOVERNMENT RESERVATIONS.

SHARPENING INSTRUMENTS.--- THESE CONTRACTS INVOLVE THE SHARPENING OF GOVERNMENT OWNED INSTRUMENTS EITHER AT THE CONTRACTOR'S PLACE OF BUSINESS OR AT THE VETERANS' ADMINISTRATION ACTIVITY.

TUNING PIANOS.--- THESE CONTRACTS COVER THIS SERVICE PERFORMED AT THE VETERANS' ADMINISTRATION ACTIVITY ON AN HOURLY BASIS OR IN SOME INSTANCES AT A FLAT RATE.

SLAUGHTERING ANIMALS.--- THESE CONTRACTS COVER THE LABOR AND MATERIAL FOR SLAUGHTERING GOVERNMENT OWNED STOCK AT CONTRACTOR'S ABATTOIR AT A SPECIFIED PRICE PER HEAD.

CUTTING HAY AND THRESHING GRAIN.--- THESE CONTRACTS COVER THE LABOR AND MACHINERY NECESSARY FOR THIS WORK PERFORMED ON THE GOVERNMENT RESERVATION.

MILLING SERVICE.--- THESE CONTRACTS COVER THE MILLING OF GOVERNMENT OWNED GRAIN, SUCH AS WHEAT, CORN, RYE, ETC., AT CONTRACTOR'S MILLS.

DRAYAGE SERVICE.--- THESE CONTRACTS COVER THE HAULING OF GOVERNMENT-OWNED OFFICE AND HOSPITAL EQUIPMENT, INCLUDING LOADING, MOVING, UNLOADING, AND PLACING THE EQUIPMENT AS DESIGNATED BY THE VETERANS' ADMINISTRATION. THEY ALSO COVER LOADING, HAULING, AND UNLOADING COAL FROM RAILROAD POINT OF DELIVERY TO VETERANS' ADMINISTRATION ACTIVITY BINS.

RAZING GOVERNMENT-OWNED STRUCTURES.--- THE CONTRACTS COVER DEMOLISHING GOVERNMENT-OWNED STRUCTURES, REMOVAL OF SUCH PORTION AS THE GOVERNMENT DOES NOT WISH TO RETAIN, AND CLEANING UP THE AREA FROM WHICH STRUCTURES ARE REMOVED. IN SOME CASES THESE CONTRACTS COVER THE SALE, DEMOLITION, AND REMOVAL OF GOVERNMENT STRUCTURES.

REPAIRING GOVERNMENT EQUIPMENT.--- THESE CONTRACTS REQUIRE THE CONTRACTOR TO FURNISH AND INSTALL THE PARTS EITHER AT THE PLACE OF BUSINESS OR ON THE GOVERNMENT RESERVATION AND TO MAKE REPAIRS INVOLVING LABOR OF MECHANICS ONLY, SUCH AS REPAIRS TO AUTOMOTIVE EQUIPMENT, STERILIZERS, AND MACHINE- SHOP EQUIPMENT.

IT IS NOTED THAT THE CHIEF, CONTRACT EXAMINING SECTION, OF YOUR OFFICE, IN HIS LETTER OF JUNE 23, 1938, TO THE DIRECTOR OF FINANCE, VETERANS' ADMINISTRATION, MAKES REFERENCE TO YOUR DECISION OF MAY 12, 1938 (A-94310) TO THE SECRETARY OF AGRICULTURE IN SUPPORT OF THE REQUEST FOR AN EXPLANATION OF THE OMISSION FROM THE CONTRACTS CITED OF THE PROVISIONS OF THE EIGHT-HOUR LAW. THIS DECISION RELATES TO A CONTRACT TO FURNISH AND INSTALL 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, MARYLAND. THE DECISION STATES:

"THE PROVISIONS OF THE ACT OF JUNE 19, 1912, REFERRED TO AS THE EIGHT- 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 EXCEPTED 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 EIGHT HOURS LABOR IN ANY ONE 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 EIGHT 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 EIGHT HOURS. SO FAR AS IS KNOWN TO THIS OFFICE, THE LATTER ACT CONSTITUTES THE ONLY EXCEPTION TO THE REQUIREMENTS OF THE EIGHT-HOUR LAW. THE EIGHT-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 HANICS," AND IT WOULD APPEAR TO BE UNQUESTIONABLY APPLICABLE TO SUCH CONTRACTS WHETHER LARGE OR SMALL, FORMAL OR INFORMAL.'

IS IT TO BE UNDERSTOOD FROM THE DECISION THAT ANY PUBLIC CONTRACT, WHICH PROVIDES THAT THE CONTRACTOR SHALL FURNISH AND INSTALL FOR THE GOVERNMENT SUPPLIES OR EQUIPMENT, SHALL BE SUBJECT TO THE EIGHT-HOUR LAW IN THE EVENT PERFORMANCE MAY REQUIRE OR INVOLVE EMPLOYMENT OF LABORERS OR MECHANICS? TO ILLUSTRATE, THE VETERANS' ADMINISTRATION PURCHASES FROM TIME TO TIME EQUIPMENT SUCH AS X-RAY MACHINES, BAKE SHOP MACHINERY, MORTUARY REFRIGERATORS, ETC., AND THE CONTRACTS REQUIRE INSTALLATION BY THE CONTRACTORS. ARE SUCH CONTRACTS SUBJECT TO THE EIGHT-HOUR LAW, AND CONCERNING THIS MATTER ATTENTION IS INVITED TO THE PROVISIONS OF PUBLIC NO. 847, 74TH CONGRESS, APPROVED JUNE 30, 1936, KNOWN AS THE "PUBLIC CONTRACTS ACT," UNDER AUTHORITY OF WHICH THE SECRETARY OF LABOR HAS RULED AS FOLLOWS RELATIVE TO CONTRACTS FOR FURNISHING AND INSTALLING EQUIPMENT WHEN THE AMOUNT EXCEEDS $10,000.00:

"CONTRACTS FOR THE ERECTION OR INSTALLATION OF MATERIALS AND EQUIPMENT MAY BE EITHER CONSTRUCTION CONTRACTS OR MANUFACTURING CONTRACTS, DEPENDING LARGELY UPON THE PLACE WHERE THE WORK IS PERFORMED. IF MOST OF THE WORK IS DONE AT THE SITE OF THE ERECTION OR INSTALLATION, THE CONTRACT SHOULD BE REGARDED AS A CONSTRUCTION CONTRACT; HOWEVER, IF MOST OF THE WORK IS DONE IN A SHOP OR FACTORY AWAY FROM THE PLACE OF USE, THE CONTRACT SHOULD BE REGARDED AS A MANUFACTURING CONTRACT. IF THERE IS ANY DOUBT CONCERNING THE CLASSIFICATION OF SUCH CONTRACT, THE MATTER SHOULD BE REFERRED TO THE DEPARTMENT OF LABOR FOR DECISION.' (SEE "RULINGS AND INTERPRETATIONS UNDER THE WALSH-HEALEY PUBLIC CONTRACTS ACT," PUBLISHED BY THE SECRETARY OF LABOR UNDER DATE OF SEPTEMBER 14, 1936.)

CLARIFICATION OF THE APPLICATION OF THE EIGHT-HOUR LAW TO CONTRACTS FOR FURNISHING SUPPLIES OR EQUIPMENT, THE TERMS OF WHICH REQUIRE THE CONTRACTOR TO EMPLOY LABORERS AND/OR MECHANICS TO ERECT OR INSTALL SAME, IS REQUESTED.

APROPOS THIS MATTER YOU ARE REQUESTED TO ADVISE ALSO WHETHER ALL CONTRACTS SUBJECT TO THE REQUIREMENTS OF THE EIGHT-HOUR LAW ARE LIKEWISE SUBJECT TO THE REQUIREMENTS OF PUBLIC NO. 324, 73D CONGRESS, APPROVED JUNE 13, 1934, AND THE REGULATIONS PROMULGATED PURSUANT THERETO BY THE SECRETARY OF THE TREASURY AND THE SECRETARY OF THE INTERIOR.

IF THE EIGHT-HOUR LAW IS APPLICABLE TO ANY OR ALL OF THE ABOVE DESCRIBED CONTRACTS, WILL IT BE NECESSARY TO SO AMEND THE CONTRACTS IN EFFECT FOR THE CURRENT FISCAL YEAR AND IF THE ANSWER IS IN THE AFFIRMATIVE WHAT ACTION SHOULD BE TAKEN IN THE EVENT A CONTRACTOR REFUSES TO CONSENT TO THE AMENDMENT.

THE ACT OF JUNE 19, 1912, 37 STAT. 137, PROVIDES:

THAT EVERY CONTRACT HEREAFTER MADE TO WHICH THE UNITED STATES, ANY TERRITORY, OR THE DISTRICT OF COLUMBIA IS A PARTY, AND EVERY SUCH CONTRACT MADE FOR OR ON BEHALF OF THE UNITED STATES, OR ANY TERRITORY, OR SAID DISTRICT, 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; * * *

THE ACT PRESCRIBES PENALTIES FOR ITS VIOLATION AND PROCEEDINGS FOR RELIEF FROM SUCH PENALTIES, IF PROPER. SECTION 2 OF THE STATUTE PROVIDES IN PERTINENT PART:

THAT NOTHING IN THIS ACT SHALL APPLY TO CONTRACTS * * * FOR THE PURCHASE OF SUPPLIES BY THE GOVERNMENT, WHETHER MANUFACTURED TO CONFORM TO PARTICULAR SPECIFICATIONS OR NOT, OR FOR SUCH MATERIALS OR ARTICLES AS MAY USUALLY BE BOUGHT IN OPEN MARKET, EXCEPT ARMOR AND ARMOR PLATE, WHETHER MADE TO CONFORM TO PARTICULAR SPECIFICATIONS OR NOT, * * *

THE ACT IS IMPERATIVE AND, WITHIN ITS OWN LIMITATIONS, APPLIES TO EVERY CONTRACT OF WHATEVER KIND OR DESCRIPTION TO WHICH THE GOVERNMENT IS A PARTY OR WHICH IS MADE FOR ON BEHALF OF THE UNITED STATES WHICH MAY (NOT WILL) REQUIRE OR INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS TO DO "ANY PART OF THE WORK CONTEMPLATED BY THE CONTRACT.' THE ACT REPOSES NO DISCRETION IN THE HEADS OF DEPARTMENTS OR INDEPENDENT AGENCIES, OR CONTRACTING OFFICERS OR REPRESENTATIVES OF THE GOVERNMENT TO OMIT FROM ANY CONTRACT TO WHICH THE ACT IS OTHERWISE APPLICABLE REQUIREMENTS FOR COMPLIANCE WITH ITS PROVISIONS. "IF AFFIRMATIVE WORDS ARE ABSOLUTE, EXPLICIT, AND PREEMPTORY AND SHOW THAT NO DISCRETION IS INTENDED TO BE GIVEN, IT WILL BE HELD IMPERATIVE.' HENDERSON'S CASE, 4 CT.CLS. 75, 83. THE RULE IS APPLICABLE HERE AND THE STATUTE MUST BE HELD TO BE "IMPERATIVE" AND APPLICABLE TO ALL CONTRACTS WITHIN ITS PURVIEW. AS SAID BY THE THEN ATTORNEY GENERAL OF THE UNITED STATES IN 29 OP.ATTY.GEN. 583, 586, IN REFERRING TO THIS LAW: * * * THAT STATUTE WAS PASSED FOR THE PURPOSE OF ENLARGING THE SCOPE OF THE EIGHT-HOUR LAW SO THAT IT SHOULD NOT BE CONFINED TO LABOR ON "THE PUBLIC WORKS OF THE UNITED STATES," BUT SHOULD APPLY TO ALL GOVERNMENT CONTRACTS GENERALLY. IT DID NOT, HOWEVER, PURPORT TO ENLARGE THE CLASS OF EMPLOYEES ENTITLED TO THE BENEFIT OF THE ACT BUT LIMITED IT, AS BEFORE, TO "LABORERS OR MECHANICS.'

MANIFESTLY, THE ACT APPLIES "TO ALL GOVERNMENT CONTRACTS GENERALLY," NOT OTHERWISE EXCEPTED FROM ITS PROVISIONS, THAT MAY INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS. NOR WOULD THE FACT THAT THE LAW HAS NOT ALWAYS BEEN STRICTLY OBSERVED, EVEN WITHOUT QUESTION FROM THE ACCOUNTING OFFICERS, AS YOUR LETTER SUGGESTS, AFFORD JUSTIFICATION FOR CONTINUED DERELICTION IN THAT RESPECT. "A CUSTOM OF THE DEPARTMENT/S), HOWEVER LONG CONTINUED BY SUCCESSIVE OFFICERS, MUST YIELD TO THE POSITIVE LANGUAGE OF THE STATUTE.' HOUGHTON V. PAYNE, 194 U.S. 88.

THE SOLE QUESTIONS FOR DETERMINATION ARE WHETHER A CONTRACT IS WITHIN THE STATUTORY EXCEPTIONS AND, IF NOT, WHETHER IT MAY REQUIRE OR INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS. ALSO, THERE MAY ARISE, UPON OCCASION, A FURTHER QUESTION AS TO WHETHER CERTAIN EMPLOYEES ARE LABORERS OR MECHANICS WITHIN THE MEANING OF THE STATUTE.

THE TERMS LABORER AND MECHANIC HAVE BEEN DEFINED VARIOUSLY IN NUMEROUS DECISIONS OF THE COURTS, USUALLY IN CONNECTION WITH THE APPLICATION OF LIEN STATUTES, BUT GENERALLY THE TERM "LABORER" IS DEFINED AS ONE WHO PERFORMS MANUAL LABOR OR LABORS AT A TOILSOME OCCUPATION REQUIRING PHYSICAL STRENGTH AS DISTINGUISHED FROM MENTAL TRAINING AND EQUIPMENT, WHILE A "MECHANIC" IS ANY SKILLED WORKER WITH TOOLS, ONE WHO HAS LEARNED A TRADE. IN RE OSBORNE, 104 FED. 780. ALSO, SEE "WORDS AND PHRASES" GENERALLY AS TO LABORERS AND MECHANICS. HENCE, THE STATUTE IS APPLICABLE TO EVERY PUBLIC CONTRACT OTHERWISE WITHIN ITS TERMS WHICH MAY REQUIRE THE EMPLOYMENT OF LABOR BY HAND OR TOOLS FOR ITS PERFORMANCE.

IT WOULD NOT APPEAR THAT THE SEVERAL CONTRACTS HERE UNDER CONSIDERATION FALL WITHIN THE EXCEPTIONS TO THE STATUTE. THEY ARE FOR FURNISHING "OPTICAL, ORTHOPEDIC, AND PROSTHETIC APPLIANCES, SUPPLIES, ETC., FOR THE VETERANS' ADMINISTRATION" DURING THE PERIOD FROM JULY 1, 1938, TO JUNE 30, 1939, IF, AS AND WHEN REQUIRED, AND TO FURNISH FITTINGS, ADJUSTMENTS, AND REPAIRS TO SUCH APPLIANCES WHEN NEEDED. WHILE, AS YOU SUGGEST, SUCH ARTICLES MAY BE BOUGHT IN THE OPEN MARKET, IT IS THE UNDERSTANDING OF THIS OFFICE THAT THEY ARE NOT USUALLY BOUGHT IN THE OPEN MARKET, BUT ARE MADE TO ORDER TO SUIT THE PARTICULAR REQUIREMENTS OF THE INDIVIDUAL PATIENT OR VETERAN FOR WHOM THEY ARE DESTINED, AND ARE NOT PURCHASED IN QUANTITY FOR DELIVERY AND MAINTENANCE IN STOCK BY THE VARIOUS VETERANS' ADMINISTRATION FACILITIES FOR USE FROM TIME TO TIME AS NEEDED, AND THE CONTRACTS ARE NOT FOR "THE PURCHASE OF SUPPLIES BY THE GOVERNMENT" WITHIN THE GENERAL ACCEPTATION OF THAT TERM. IF THIS UNDERSTANDING IS CORRECT, THE MANUFACTURE OF SUCH ARTICLES FOR THE GOVERNMENT UNDER THE CONTRACT, AS WELL AS THE FITTING, ADJUSTMENT, AND REPAIR THEREOF, MAY, AND IN MOST INSTANCES DOUBTLESS WILL, ENTAIL THE EMPLOYMENT OF LABORERS OR MECHANICS OF A SKILLED ORDER, AND THE CONTRACTS ARE WITHIN THE STATUTE. THE FACT THAT THE ARTICLES ARE PURCHASED FOR, AND PAID FOR IN WHOLE OR IN PART BY VETERANS, DOES NOT OPERATE TO EXEMPT THE CONTRACTS FROM THE REQUIREMENTS OF THE STATUTE. THE GOVERNMENT IS A PARTY TO THE CONTRACT WHICH IS MADE ON ITS BEHALF AND THE EXPRESS TERMS OF THE STATUTE APPLY.

YOUR LETTER REQUESTS DECISION AS TO WHETHER THE EIGHT-HOUR LAW SHOULD BE INCORPORATED IN SEVERAL TYPES OF CONTRACTS EXPLAINED AND LISTED THEREIN. OF THOSE LISTED, CONTRACTS FOR OFFICE MACHINE REPAIRS, ELEVATOR INSPECTION SERVICE, LAUNDRY SERVICE, CLEANING, PRESSING AND ALTERING CLOTHING, UNDERTAKING SERVICE, SHARPENING INSTRUMENTS, TUNING PIANOS, SLAUGHTERING ANIMALS, MILLING SERVICE, CUTTING HAY AND THRESHING GRAIN, DRAYAGE SERVICE, AND REPAIRING GOVERNMENT EQUIPMENT APPEAR TO BE PLAINLY WITHIN THE PROVISIONS OF THE STATUTE, ASSUMING THAT THE WORK IS TO BE PERFORMED IN WHOLE OR IN PART BY EMPLOYEES OF THE CONTRACTORS AND ARE NOT SERVICES TO BE WHOLLY PERFORMED BY A CONTRACTOR IN PERSON. IT IS POSSIBLE, OF COURSE, THAT UNDER SOME OF THESE TYPES OF CONTRACTS, SUCH AS SHARPENING INSTRUMENTS OR TUNING PIANOS, FOR EXAMPLE, THE WORK MAY ALL BE DONE BY THE CONTRACTOR HIMSELF, NOT REQUIRING OR INVOLVING THE EMPLOYMENT OF OTHER LABORERS OR MECHANICS, IN WHICH EVENT THE STATUTE WOULD NOT BE APPLICABLE. ALSO, THERE ARE NUMEROUS SIMILAR TYPES OF CONTRACTS COVERING MINOR ITEMS OF REPAIRS, PAINTING, ETC., UNDER WHICH THE WORK IS DONE BY A CONTRACTOR IN PERSON AND THE STATUTE WOULD NOT APPLY, BEING CLEARLY INTENDED FOR THE BENEFIT OF EMPLOYEES, AND NOT OTHERWISE TO CONTROL CONTRACTORS IN RENDERING PERSONAL SERVICES.

ORDINARILY, CONTRACTS FOR REMOVAL OF GARBAGE WOULD APPEAR TO BE NO MORE THAN SALES OF SUCH GARBAGE TO THE CONTRACTOR, THE WORK OF REMOVING THE GARBAGE BEING MERELY INCIDENTAL TO THE SALE AND FOR THE BENEFIT OF THE CONTRACTOR, AND NOT WITHIN THE MEANING OF THE STATUTE.

YOU STATE THAT CONTRACTS FOR RAZING GOVERNMENT-OWNED STRUCTURES COVER DEMOLITION OF SUCH STRUCTURES, REMOVAL OF SUCH PORTION AS THE GOVERNMENT DOES NOT WISH TO RETAIN, AND CLEANING UP OF THE AREA FROM WHICH THE STRUCTURES ARE REMOVED, AND "IN SOME CASES THESE CONTRACTS COVER THE SALE, DEMOLITION, AND REMOVAL OF GOVERNMENT STRUCTURES.' THUS IT APPEARS THAT THERE ARE TWO TYPES OF CONTRACTS HERE INVOLVED. THE FIRST TYPE, INVOLVING DEMOLITION OF STRUCTURES, REMOVAL OF A PORTION THEREOF, AND CLEANING UP OF THE AREA FROM WHICH STRUCTURES ARE REMOVED, WOULD APPEAR TO BE UNQUESTIONABLY WITHIN THE STATUTE, IN THAT THE CONTRACTOR IN PERFORMING THE WORK OF DEMOLITION, REMOVAL OF ALL OR PART OF THE STRUCTURE AND CLEANING UP OF THE AREA IS DOING CONTRACT WORK FOR THE GOVERNMENT, AND THE REQUIRED STATUTORY PROVISION SHOULD BE INCORPORATED IN THE CONTRACT. THE SECOND TYPE, COVERING THE SALE, DEMOLITION, AND REMOVAL OF THE GOVERNMENT- OWNED STRUCTURES WOULD APPEAR TO BE MERELY A SALE OF THE MATERIAL COMPRISING SUCH STRUCTURES TO THE PURCHASER, THE WORK OF REMOVAL BEING MERELY INCIDENTAL TO THE SALE OF THE MATERIAL AND WHOLLY FOR THE BENEFIT OF THE CONTRACTOR. SEE GRANT V. CITY OF MILWAUKEE, 146 N.W. 780, 782; 156 WIS. 35. CONTRACTS OF THIS TYPE WOULD NOT REQUIRE INCLUSION OF THE STATUTORY PROVISIONS.

IT MAY BE STATED FOR YOUR CONSIDERATION THAT THE WAR DEPARTMENT, IN CONSONANCE WITH THE VIEWS OF THIS OFFICE, HAS RECENTLY (JULY 8, 1938) ISSUED CIRCULAR LETTER NO. 68, AS FOLLOWS:

SUBJECT: APPLICATION OF THE EIGHT-HOUR LAW.

1. ALL CONTRACTS FOR LAUNDRY, DRY CLEANING, RENOVATION, ROASTING AND GRINDING COFFEE, HARVESTING HAY AND STEVEDORING ARE SUBJECT TO THE PROVISIONS OF THE EIGHT-HOUR LAW OF JUNE 19, 1912 (37 STAT. 137). ACCORDINGLY, ALL INVITATIONS FOR BIDS FOR SUCH SERVICES SHOULD INFORM BIDDERS THAT THE RESULTANT CONTRACT WILL CONTAIN THE FOLLOWING ARTICLE:

"NO LABORER OR MECHANIC DOING ANY PART OF THE WORK CONTEMPLATED BY THIS 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 AT THE SITE THEREOF. FOR EACH VIOLATION OF THE REQUIREMENTS OF THIS ARTICLE A PENALTY OF FIVE DOLLARS SHALL BE IMPOSED UPON THE CONTRACTOR FOR EACH LABORER OR MECHANIC FOR EVERY CALENDAR DAY IN WHICH SUCH EMPLOYEE IS REQUIRED OR PERMITTED TO LABOR MORE THAN EIGHT HOURS UPON SAID WORK, AND ALL PENALTIES THUS IMPOSED SHALL BE WITHHELD FOR THE USE AND BENEFIT OF THE GOVERNMENT: PROVIDED, THAT THIS STIPULATION SHALL BE SUBJECT IN ALL RESPECTS TO THE EXCEPTIONS AND PROVISIONS OF THE ACT OF JUNE 19, 1912 (37 STAT. 137), RELATING TO HOURS OF LABOR.'

THIS LETTER WAS AMPLIFIED BY CIRCULAR LETTER NO. 88, AUGUST 22, 1938, AS FOLLOWS:

SUBJECT: APPLICATION OF THE EIGHT-HOUR LAW.

1. THE REQUIREMENTS IN RESPECT OF THE EIGHT-HOUR LAW SET FORTH IN CIRCULAR LETTER NO. 68, O.Q.M.G., 1938, ARE ALSO APPLICABLE TO CONTRACTS FOR SHOE REPAIR, PACKING AND CRATING OF HOUSEHOLD GOODS AND PROFESSIONAL BOOKS, AND CONTRACTS FOR ALL OTHER NON-PERSONAL SERVICES OF A SIMILAR NATURE.

RELATIVE TO YOUR INQUIRY AS TO WHETHER THE STATUTE IS APPLICABLE TO PURCHASES OF SUPPLIES OR EQUIPMENT, SUCH AS INDICATED IN YOUR LETTER, TO BE INSTALLED BY THE CONTRACTOR, IT WOULD APPEAR THAT WHEN SUCH ARTICLE OR EQUIPMENT IS PURCHASED IN A FINISHED STATE AT A FIXED PRICE, AND INSTALLATION IN PLACE IS MERELY INCIDENTAL TO THE PURCHASE, THE STATUTORY PROVISIONS WOULD NOT BE REQUIRED. ON THE OTHER HAND, WHEN INSTALLATION OF EQUIPMENT IS SO PART AND PARCEL OF THE CONTRACT AS TO INCREASE THE COST OF THE ARTICLE MATERIALLY, AND IS A WORK OF SUCH DURATION AS TO REQUIRE OR INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS OVER A SUBSTANTIAL PERIOD OF TIME, THE STATUTORY REQUIREMENTS WOULD BE FOR APPLICATION.

AS TO THE APPLICATION OF THE STATUTE GENERALLY, ATTENTION IS INVITED AGAIN TO 29 OP.ATTY.GEN. 583, 587, IN WHICH ATTORNEY GENERAL WICKERSHAM SAID:

I AM NOT ABLE TO SAY IN ADVANCE THAT A CONTRACT FOR DREDGING MAY NOT POSSIBLY "REQUIRE OR INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS" IN SOME OF THE STAGES OF ITS PERFORMANCE. THAT IS A PROPER MATTER FOR DECISION BY THE ADMINISTRATIVE OFFICER IN CHARGE, APPLYING THE PRINCIPLES OF LAW SET OUT ABOVE. WHERE SUCH OFFICER IS IN DOUBT, THE WISEST COURSE IS TO INSERT IN THE CONTRACT THE EIGHT-HOUR RESTRICTION REQUIRED BY THE ACT OF JUNE 19, 1912, LEAVING THE STATUS OF ANY PARTICULAR PERSON AS TO WHOM QUESTION IS RAISED TO BE DETERMINED BY THE ACTUAL FACTS OF HIS EMPLOYMENT.

THE STATUTE ITSELF DOES NOT LIMIT ITS APPLICATION TO CONTRACTS WHICH POSITIVELY WILL INVOLVE THE EMPLOYMENT OF LABORERS AND MECHANICS BUT EMBRACES CONTRACTS WHICH MAY REQUIRE SUCH EMPLOYMENT, THUS IMPORTING POSSIBILITY RATHER THAN POSITIVITY. THEREFORE, IT WOULD APPEAR THAT IF THE CONTRACTING AGENCY OF THE GOVERNMENT CAN DETERMINE POSITIVELY BEFOREHAND THAT A GIVEN CONTRACT WILL NOT REQUIRE OR INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS DURING THE COURSE OF ITS PERFORMANCE, THE PROVISIONS SPECIFIED BY THE STATUTE SAFELY MAY BE OMITTED WHILE, IN CASES WHERE DOUBT EXISTS AND PERFORMANCE OF THE CONTRACT MAY INVOLVE SUCH EMPLOYMENT "THE WISEST COURSE," AS SAID BY THE ATTORNEY GENERAL, IS TO INSERT THE EIGHT-HOUR RESTRICTION REQUIRED BY THE STATUTE, THUS PROTECTING THE GOVERNMENT AGAINST POSSIBLE VIOLATION OF THE LAW. IF ANY CONTRACT CONTAINING SUCH PROVISION DOES NOT EVENTUALLY INVOLVE SUCH EMPLOYMENT, THE EIGHT-HOUR PROVISION THEREIN WOULD BE INOPERATIVE. AS TO SOME OF THE TYPES OF CONTRACTS YOU LIST, AND OTHERS SIMILAR, IT IS, OF COURSE, DOUBTFUL IF PERFORMANCE WOULD INVOLVE THE EMPLOYMENT OF LABORERS FOR AS MUCH AS EIGHT HOURS AT ANY ONE TIME, BUT THE PRESENCE OF THE STATUTORY PROVISIONS IN THE CONTRACT COULD NOT PREJUDICE THE CONTRACTOR IN THAT EVENT.

YOU REQUEST TO BE ADVISED WHETHER ALL CONTRACTS SUBJECT TO THE EIGHT-HOUR LAW ARE LIKEWISE SUBJECT TO THE REQUIREMENTS OF THE ACT OF JUNE 13, 1934, 48 STAT. 948, KNOWN AS THE "KICK BACK" LAW AND THE REGULATIONS PROMULGATED PURSUANT THERETO BY THE SECRETARY OF THE TREASURY AND THE SECRETARY OF THE INTERIOR.

IT WAS STATED IN SUBSTANCE IN A DECISION TO THE POSTMASTER GENERAL OF SEPTEMBER 25, 1937, 17 COMP. GEN. 283, 285, THAT THE QUESTION AS TO WHETHER THE PROVISIONS OF SECTION 1 OF THE ACT WOULD BE APPLICABLE TO A CONTRACT SUCH AS WAS THERE UNDER CONSIDERATION WAS NOT FOR DETERMINATION BY THIS OFFICE. HOWEVER, IN VIEW OF YOUR INQUIRY IT MAY NOT BE AMISS TO EXPRESS THE VIEW OF THIS OFFICE IN REFERENCE THERETO.

SECTION 1 OF THAT ACT, INSOFAR AS IS HERE PERTINENT, PROVIDES:

THAT WHOEVER SHALL INDUCE ANY PERSON EMPLOYED IN THE * * * PROSECUTION * * * OF ANY * * * PUBLIC WORK * * * TO GIVE UP ANY PART OF THE COMPENSATION TO WHICH HE IS ENTITLED UNDER HIS CONTRACT OF EMPLOYMENT, BY FORCE, INTIMIDATION, THREAT OF PROCURING DISMISSAL FROM SUCH EMPLOYMENT, OR BY ANY OTHER MANNER WHATSOEVER, SHALL BE FINED NOT MORE THAN $5,000, OR IMPRISONED NOT MORE THAN FIVE YEARS, OR BOTH.

SECTION 2 OF THE ACT PROVIDES THAT TO AID IN THE ENFORCEMENT OF SECTION 1, OF THE SECRETARY OF THE TREASURY AND THE SECRETARY OF THE INTERIOR JOINTLY SHALL MAKE REASONABLE REGULATIONS FOR CONTRACTORS AND SUBCONTRACTORS ON "ANY SUCH BUILDING OR WORK," INCLUDING A PROVISION THAT EACH CONTRACTOR AND SUBCONTRACTOR SHALL FURNISH WEEKLY AN AFFIDAVIT WITH RESPECT TO THE WAGES PAID EACH EMPLOYEE DURING THE PRECEDING WEEK. IT MAY BE POINTED OUT THAT THE ACT IS A "CRIMINAL STATUTE" PROHIBITING CERTAIN PRACTICES AND PRESCRIBING PENALTIES FOR VIOLATION OF ITS PROVISIONS, BUT THE STATUTE DOES NOT REQUIRE THAT IT OR ANY REFERENCE TO ITS PROVISION BE INCORPORATED IN CONTRACTS OF THE GOVERNMENT. NOR DOES SECTION 2 OF THE ACT APPARENTLY CONTEMPLATE THAT THE REGULATIONS OF THE SECRETARY OF THE TREASURY AND THE SECRETARY OF THE INTERIOR PROMULGATED PURSUANT THERETO SHOULD BE INCLUDED AS CONTRACT STIPULATIONS, BUT THOSE REGULATIONS DO PROVIDE THAT THEY SHALL BE MADE A PART OF EACH CONTRACT EXECUTED FOR THE SPECIFIED PURPOSES, THEREBY SERVING TO PUT A CONTRACTOR ON FURTHER NOTICE OF THE STATUTE. HOWEVER, VIOLATION OF THAT STATUTE IS PUNISHABLE INDEPENDENT OF ANY CONTRACT UNDERTAKING. THE STATUE EXTENDS THE MANTLE OF ITS PROTECTION TO ANY PERSON EMPLOYED IN THE PROSECUTION OF ,PUBLIC WORK" BUT APPEARS TO CONTEMPLATE ONLY THOSE CONTRACTS WHICH REQUIRE THE ENTIRE WORKING TIME OF ALL EMPLOYEES OF THE CONTRACTOR OR SUBCONTRACTOR ENGAGED ON SUCH WORK, AS WITNESS THE MANDATORY REQUIREMENT FOR A WEEKLY AFFIDAVIT WITH RESPECT TO THE WAGES PAID EACH EMPLOYEE DURING THE PRECEDING WEEK. THERE ARE MANY MISCELLANEOUS GOVERNMENT CONTRACTS SUCH AS AND SIMILAR TO THOSE ENUMERATED IN YOUR SUBMISSION WHICH ARE INCIDENTAL TO AND COMMINGLED WITH THE GENERAL BUSINESS OF THE CONTRACTORS, WHICH REQUIRE THE SERVICES OF COMPARATIVELY FEW EMPLOYEES FOR THEIR PERFORMANCE, AND EVEN THOSE ONLY FOR A PORTION OF THEIR TIME. IT WOULD NOT APPEAR TO BE THE INTENT OF THE ACT OF JUNE 13, 1934, THAT SUCH CONTRACTORS SHOULD BE REQUIRED TO FURNISH WEEKLY AFFIDAVITS OF THE AMOUNT PAID TO EACH EMPLOYEE, ALTHOUGH, OF COURSE, THE CONTRACTOR OR ANY OTHER PERSON VIOLATING THE CRIMINAL PROVISIONS OF THE STATUTE WOULD, UPON CONVICTION, BE SUBJECT TO THE PRESCRIBED PENALTIES. REQUIRING SUCH AN AFFIDAVIT FROM "PART TIME" CONTRACTORS WOULD NOT APPEAR TO BE A "REASONABLE" REGULATION. ALSO, IN THIS CONNECTION, IT MAY BE POINTED OUT THAT THE ACT OF JUNE 19, 1912, PROVIDES THAT NO LABORER OR MECHANIC ENGAGED IN WORK CONTEMPLATED UNDER A GOVERNMENT CONTRACT SHALL BE REQUIRED OR PERMITTED TO WORK MORE THAN EIGHT HOURS IN ANY ONE CALENDAR DAY UPON SUCH WORK, AND DOES NOT OTHERWISE LIMIT THE HOURS OF EMPLOYMENT OF SUCH LABORERS AND MECHANICS. SEE 29 OP.ATTY.GEN. 534.

REFERRING TO THE QUESTION IN YOUR LAST PARAGRAPH, THIS OFFICE WILL NOT QUESTION OTHERWISE PROPER PAYMENTS UNDER SUCH CURRENT CONTRACTS HERETOFORE EXECUTED. HOWEVER, ADMINISTRATIVE MEASURES SHOULD BE TAKEN TO THE END THAT SUCH AND SIMILAR CONTRACTS HEREAFTER ENTERED INTO BY THE VETERANS' ADMINISTRATION INCLUDE THE STIPULATIONS REQUIRED BY THE EIGHT-HOUR LAW OF JUNE 19, 1912, 37 STAT. 137, IF NOT WITHIN THE STATUTORY EXCEPTIONS, AND INVITATIONS AND PROPOSALS FOR SUCH CONTRACTS SHOULD INFORM BIDDERS TO THAT EFFECT.