B-102012, MAY 3, 1951, 30 COMP. GEN. 427

B-102012: May 3, 1951

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CONTRACTS - AMBULANCE SERVICE - EIGHT-HOUR LAW APPLICABILITY CONTRACTS FOR FURNISHING AMBULANCE SERVICE FOR VETERANS ADMINISTRATION BENEFICIARIES WITH PAYMENT ON TRIP AND MILEAGE BASIS ARE CONTRACTS FOR TRANSPORTATION. 1951: REFERENCE IS MADE TO YOUR LETTER OF MARCH 12. STATED THAT THE STATUTORY REQUIREMENT WAS INADVERTENTLY OMITTED FROM CONTRACT V3003P-41 AND THERE WAS FORWARDED FOR FILING WITH SAID CONTRACT AN EIGHT-HOUR CLAUSE SIGNED BY THE CONTRACTOR. IT WAS STATED IN REPLY OF NOVEMBER 6. WHILE IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT THE EIGHT-HOUR LAW CLAUSE SHOULD HAVE BEEN INCLUDED IN THAT CONTRACT. IT WAS FURTHER STATED THAT UP UNTIL THAT TIME NO PAYMENT UNDER THE CONTRACT HAD BEEN MADE BUT THAT ONE VOUCHER IN THE AMOUNT OF $149.40.

B-102012, MAY 3, 1951, 30 COMP. GEN. 427

CONTRACTS - AMBULANCE SERVICE - EIGHT-HOUR LAW APPLICABILITY CONTRACTS FOR FURNISHING AMBULANCE SERVICE FOR VETERANS ADMINISTRATION BENEFICIARIES WITH PAYMENT ON TRIP AND MILEAGE BASIS ARE CONTRACTS FOR TRANSPORTATION, AND FALL WITHIN THE TRANSPORTATION EXCEPTION OF THE EIGHT- HOUR LAW OF JUNE 19, 1912, AS AMENDED, AND THEREFORE THE REQUIREMENTS OF THE ACT NEED NOT BE INCLUDED IN SUCH CONTRACTS.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS AFFAIRS, MAY 3, 1951:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 12, 1951, REQUESTING A DECISION AS TO WHETHER THE PROVISIONS OF THE EIGHT-HOUR LAW OF JUNE 19, 1912, AS AMENDED (40 U.S.C. 324, ET SEQ.), SHOULD BE INCLUDED IN CONTRACTS FOR AMBULANCE SERVICE.

SPECIFICALLY, YOUR LETTER REFERS TO CONTRACTS V3003P-40, DATED JUNE 19, 1950, WITH LETENDRE-DERY AND COMPANY, AND V3003P-41, DATED JUNE 21, 1950, WITH PHILIP A. DUPUIS, PROVIDING FOR THE FURNISHING OF AMBULANCE SERVICE AND DRAYAGE SERVICE, RESPECTIVELY, AS REQUIRED, DURING THE PERIOD BEGINNING JULY 1, 1950, AND ENDING JUNE 30, 1951. PARAGRAPH 2 OF THE SPECIAL CONDITIONS ATTACHED TO CONTRACT V3003P-40 PROVIDES THAT THE PRICES QUOTED INCLUDE THE SERVICES OF A CHAUFFEUR AND AN ATTENDANT WITH THE AMBULANCE ON EVERY TRIP.

ON THE BASIS THAT THE TWO REFERRED-TO CONTRACTS APPEARED TO INVOLVE EMPLOYMENT OF LABORERS AND/OR MECHANICS, THE AUDIT DIVISION OF THIS OFFICE, BY LETTER OF AUGUST 29, 1950, REQUESTED THE REGIONAL OFFICE, VETERANS ADMINISTRATION, FOR AN EXPLANATION AS TO THE REASON FOR OMISSION OF THE PROVISIONS OF THE EIGHT-HOUR LAW. IN REPLY DATED SEPTEMBER 8, 1950, THE FINANCE OFFICER, VETERANS ADMINISTRATION, STATED THAT THE STATUTORY REQUIREMENT WAS INADVERTENTLY OMITTED FROM CONTRACT V3003P-41 AND THERE WAS FORWARDED FOR FILING WITH SAID CONTRACT AN EIGHT-HOUR CLAUSE SIGNED BY THE CONTRACTOR. HOWEVER, WITH RESPECT TO CONTRACT V3003P-40, IT WAS STATED IN REPLY OF NOVEMBER 6, 1950, FROM THE FINANCE OFFICE THAT, WHILE IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT THE EIGHT-HOUR LAW CLAUSE SHOULD HAVE BEEN INCLUDED IN THAT CONTRACT, THE CONTRACTOR HAD REFUSED TO AGREE TO SUCH INCLUSION AND HAD ACCEPTED CANCELLATION OF THE CONTRACT WITHOUT PROTEST EFFECTIVE SEPTEMBER 21, 1950. IT WAS FURTHER STATED THAT UP UNTIL THAT TIME NO PAYMENT UNDER THE CONTRACT HAD BEEN MADE BUT THAT ONE VOUCHER IN THE AMOUNT OF $149.40, COVERING SERVICES AUTHORIZED AND RENDERED PRIOR TO THE EFFECTIVE DATE OF CANCELLATION OF SAID CONTRACT, WAS THEN BEING PROCESSED FOR PAYMENT.

THE SAID ACT OF JUNE 19, 1912, 37 STAT. 137, SEC. 1, PROVIDES THAT "EVERY CONTRACT" TO WHICH THE UNITED STATES IS A PARTY "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" SHALL BE REQUIRED OR PERMITTED TO WORK MORE THAN EIGHT HOURS IN ANY ONE CALENDAR DAY ,UPON SUCH WORK.' SECTION 2, 37 STAT. 138, PROVIDES THAT NOTHING IN SAID ACT "SHALL APPLY TO CONTRACTS FOR TRANSPORTATION BY LAND OR WATER.' SECTION 303 OF THE ACT OF SEPTEMBER 9, 1940, 54 STAT. 884, REMOVED THE PROHIBITION AGAINST EMPLOYING LABORERS AND MECHANICS IN EXCESS OF EIGHT HOURS PER DAY PROVIDED THE CONTRACTOR PAID SUCH LABORERS AND MECHANICS WAGES AT THE RATES OF TIME AND ONE-HALF FOR ALL HOURS WORKED IN EXCESS OF EIGHT HOURS PER DAY. THUS, THE 1940 STATUTE IS MERELY SUPPLEMENTAL TO THE ORIGINAL ACT WHICH REMAINS IN FULL FORCE AND EFFECT, EXCEPT TO THE EXTENT QUALIFIED BY THE LATER ACT. 20 COMP. GEN. 233; 21 ID. 1110.

YOU STATE THAT CONTRACTS FOR AMBULANCE SERVICES, WHICH ARE PAID FOR ON A TRIP AND MILEAGE BASIS, DO NOT REQUIRE CONTRACTORS TO FURNISH OR PROVIDE THE SERVICES OF EITHER LABORERS OR MECHANICS IN CONNECTION WITH THE SERVICES RENDERED, AND YOU REFER TO 18 COMP. GEN. 337, WHERE THE TERMS LABORER" AND "MECHANIC" ARE DEFINED AS FOLLOWS:

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. * * *

FURTHER, YOU STATE THAT A CONTRACT FOR AMBULANCE SERVICE APPEARS TO BE A CONTRACT FOR TRANSPORTATION AND FALLS WITHIN ONE OF THE CLASSES OF THE EXCEPTIONS CONTAINED IN SECTION 2 OF SAID ACT, NAMELY, TRANSPORTATION.

THE WORD "TRANSPORTATION" HAS VARIOUS MEANINGS BUT IN ITS ORDINARY ACCEPTATION IT MEANS TO CARRY OR TO CONVEY. UNITED STATES V. SHELDON, 2 WHEAT. 119; KUDLA V. AETNA LIFE INSURANCE COMPANY, 9 A.2D 284. WITH RESPECT TO CONTRACTS FOR FURNISHING OF TRANSPORT SERVICES, TOGETHER WITH OTHER SERVICES, THE ACCOUNTING OFFICERS HAVE CONSTRUED SUCH CONTRACTS AS EXCEPTED FROM THE PROVISIONS OF THE EIGHT-HOUR LAW BY SECTION 2 THEREOF WHERE THE SERVICES TO BE FURNISHED ARE PRIMARILY FOR TRANSPORTATION. WHILE, AS INDICATED ABOVE, CONTRACT V3003P-40, IN ADDITION TO REQUIRING THE TRANSPORTATION OF PATIENTS OF THE VETERANS ADMINISTRATION, ALSO REQUIRES THE SERVICES OF A CHAUFFEUR AND AN ATTENDANT ON EVERY TRIP, IT SEEMS CLEAR THAT THE CONTRACT IS ESSENTIALLY A CONTRACT FOR TRANSPORTATION.

ACCORDINGLY, IN VIEW OF THE EXPRESS PROVISIONS OF SECTION 2 OF THE EIGHT- HOUR LAW, EXEMPTING FROM ITS APPLICATION CONTRACTS FOR TRANSPORTATION BY LAND OR WATER, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO OTHERWISE PROPER PAYMENTS MADE UNDER CONTRACT V3003P-40 OR TO THE FAILURE TO INCLUDE THE REQUIREMENTS OF THE EIGHT-HOUR LAW IN SIMILAR CONTRACTS.