B-1109, FEBRUARY 18, 1939, 18 COMP. GEN. 672

B-1109: Feb 18, 1939

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WHERE THE INSTALLATION IS NOT MERELY INCIDENTAL TO THE PURCHASE AND MAY REQUIRE THE WORK OF A LABORER OR MECHANIC FOR A PERIOD GREATER THAN 8 HOURS IN ANY 1 CALENDAR DAY. KINDLY BE INFORMED THAT THIS AUTHORITY HAS ADMINISTRATIVELY DETERMINED THAT THE CONTRACT IN QUESTION IS ONE FOR THE PURCHASE OF SUPPLIES. THAT THE WORK OF INSTALLATION IS MERELY INCIDENTAL THERETO. IT IS RESPECTFULLY SUBMITTED THAT THE PROVISIONS OF THE EIGHT-HOUR LAW ARE NOT APPLICABLE. WHICH WAS IN EXCESS OF $10. WE HAVE INTERPRETED THE ABOVE CONTRACTS NOT TO BE SUBJECT TO THE EIGHT- HOUR LAW (37 STAT. 137) FOR THE FOLLOWING REASONS: 1. MOST OF THE WORK INVOLVED IS PERFORMED AT THE FACTORY. THE INSTALLATION WORK IS MERELY INCIDENTAL TO THE PURCHASE OF THE ARTICLES AND DOES NOT MATERIALLY INCREASE THE PRICE THEREOF. 3.

B-1109, FEBRUARY 18, 1939, 18 COMP. GEN. 672

CONTRACTS - 8-HOUR LAW - APPLICABILITY TO EQUIPMENT PURCHASE INSTALLATIONS CONTRACTS FOR THE FURNISHING OF EQUIPMENT IN A FINISHED STATE AND AT A FIXED PRICE, INCLUDING INSTALLATION OF THE EQUIPMENT SO FURNISHED, SHOULD CONTAIN A PROVISION REQUIRING COMPLIANCE WITH THE 8-HOUR WORK LIMITATION LAW OF JUNE 19, 1912, 37 STAT. 137, WHERE THE INSTALLATION IS NOT MERELY INCIDENTAL TO THE PURCHASE AND MAY REQUIRE THE WORK OF A LABORER OR MECHANIC FOR A PERIOD GREATER THAN 8 HOURS IN ANY 1 CALENDAR DAY. COMP. GEN. 337, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR, UNITED STATES HOUSING AUTHORITY, FEBRUARY 18, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 17, 1939, AS FOLLOWS:

ALLOW ME TO ACKNOWLEDGE THE LETTER DATED JANUARY 6, 1938 (1939) (YOUR REFERENCE A-FJP-CE), OF THE CHIEF OF THE CONTRACT EXAMINING SECTION OF YOUR OFFICE, CALLING ATTENTION TO CONTRACT NO. I HF 1706-AA 17, DATED OCTOBER 5, 1938, WITH J. E. PORTER CORP., OTTAWA, ILLINOIS, FOR FURNISHING AND INSTALLING PLAYGROUND EQUIPMENT ON CERTAIN NAMED PROJECTS, AND REQUESTING THAT AN EXPLANATION BE FURNISHED OF THE OMISSION FROM THE CONTRACT OF THE PROVISIONS OF THE EIGHT-HOUR LAW (37 STAT. 137).

KINDLY BE INFORMED THAT THIS AUTHORITY HAS ADMINISTRATIVELY DETERMINED THAT THE CONTRACT IN QUESTION IS ONE FOR THE PURCHASE OF SUPPLIES, AND THAT THE WORK OF INSTALLATION IS MERELY INCIDENTAL THERETO. THEREFORE, IT IS RESPECTFULLY SUBMITTED THAT THE PROVISIONS OF THE EIGHT-HOUR LAW ARE NOT APPLICABLE. IN PASSING, I WISH TO POINT OUT THAT IN A SIMILAR CONTRACT FOR EQUIPMENT, NO. I HF 1706-AA-6, WHICH WAS IN EXCESS OF $10,000.00 THE AUTHORITY INSERTED THE PROVISIONS OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT (PUBLIC, NO. 846, 74TH CONGRESS).

WE HAVE INTERPRETED THE ABOVE CONTRACTS NOT TO BE SUBJECT TO THE EIGHT- HOUR LAW (37 STAT. 137) FOR THE FOLLOWING REASONS:

1. MOST OF THE WORK INVOLVED IS PERFORMED AT THE FACTORY. (SEE RULING AND INTERPRETATION NO. 1 UNDER THE WALSH-HEALEY PUBLIC CONTRACT ACT, SECTION 1, PARAGRAPH 3B.)

2. AS STATED ABOVE, THE INSTALLATION WORK IS MERELY INCIDENTAL TO THE PURCHASE OF THE ARTICLES AND DOES NOT MATERIALLY INCREASE THE PRICE THEREOF.

3. THE INSTALLATION DOES NOT REQUIRE THE EMPLOYMENT OF MECHANICS OR LABORERS OVER A SUBSTANTIAL PERIOD OF TIME, THE TIME INVOLVED BEING FROM ONE TO SEVEN DAYS DEPENDING ON THE ARTICLE OR ARTICLES TO BE INSTALLED.

IN YOUR OPINION A-97726 REPORTED AT 18 COMP. GEN. 337, 343, IT WOULD APPEAR THAT YOU CONCUR THAT REASONS NUMBERED 2 AND 3 ABOVE WOULD BE SUFFICIENT TO PLACE THE CONTRACT OUTSIDE THE PROVISIONS OF THE ACT OF JUNE 19, 1912 (37 STAT. 137). HOWEVER, IF YOU ARE OF THE OPINION THAT THE PROVISIONS OF THE EIGHT-HOUR LAW ARE APPLICABLE TO CONTRACTS OF THIS NATURE, AND WILL SO INFORM THIS AUTHORITY, ANY FURTHER EQUIPMENT CONTRACT ENTERED INTO BY THE AUTHORITY WILL CONTAIN THE PROVISIONS OF THE EIGHT- HOUR LAW.

IN SUPPORT OF YOUR CONCLUSION THAT THE INSTANT CONTRACT CALLING FOR THE DELIVERY AND INSTALLATION OF PLAYGROUND EQUIPMENT IS NOT WITHIN THE PROVISIONS OF THE 8-HOUR LAW, YOU REFER TO MY DECISION OF OCTOBER 14, 1938, 18 COMP. GEN. 337. HOWEVER, IN THAT DECISION, WHEREIN WERE QUOTED THE APPLICABLE PROVISIONS OF THE ACT OF JUNE 19, 1912, 37 STAT. 137, AND CERTAIN EXCEPTIONS THERETO, THE ADMINISTRATOR OF VETERANS' AFFAIRS WAS ADVISED, WITH REFERENCE TO THE APPLICABILITY OF THE 8-HOUR LAW TO CONTRACTS FOR THE PURCHASE AND INSTALLATION OF EQUIPMENT, AS FOLLOWS:

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 POSITIVELY. 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, IT 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.

IT IS NOTED THAT THE INSTALLATION OF THIS PLAYGROUND EQUIPMENT REQUIRES THE CONSTRUCTION OF CONCRETE FOOTINGS FOR MANY OF THE ITEMS, AND THAT THE PERIOD OF TIME ESTIMATED FOR SUCH INSTALLATIONS IS FROM 1 TO 7 DAYS. WHEN COMPARED WITH THE DELIVERY PERIOD OF 30 DAYS PROMISED BY THE CONTRACTOR THE TIME REQUIRED FOR INSTALLATION APPEARS TO BEAR SUBSTANTIAL RELATION TO THE ENTIRE CONTRACT PERIOD.

ACCORDINGLY, WHOLE NO FURTHER QUESTION WILL BE RAISED WITH RESPECT TO THE CONTRACT HERE INVOLVED BECAUSE OF FAILURE TO EXACT COMPLIANCE WITH THE 8- HOUR LAW, YOU ARE ADVISED THAT IN FUTURE CONTRACTS OF A CLASS INVOLVING THE INSTALLATION OF EQUIPMENT, AS DISTINGUISHED FROM ITS DELIVERY AND ASSEMBLY, WHERE IT APPEARS THAT THE PERIOD OF TIME REQUIRED FOR INSTALLATION IS SUCH THAT A LABORER OR MECHANIC MIGHT BE CALLED UPON TO PERFORM WORK FOR A PERIOD GREATER THAN 8 HOURS IN ANY 1 CALENDAR DAY, THERE SHOULD BE INCLUDED IN THE CONTRACTS A PROVISION REQUIRING COMPLIANCE WITH THE ACT OF JUNE 19, 1912, SUPRA. ..END :