B-132044, JUNE 10, 1957, 36 COMP. GEN. 806

B-132044: Jun 10, 1957

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CONTRACTS - LABOR STIPULATIONS - DAVIS-BACON ACT - DIRECTIVE REQUIRING PERFORMANCE OF WORK IN ACCORDANCE WITH AREA LABOR PRACTICES A STIPULATION IN A DAVIS-BACON ACT WAGE PREDETERMINATION WHICH DIRECTS PERFORMANCE OF WORK IN ACCORDANCE WITH A LOCALLY PREVAILING PRACTICE WHICH PRECLUDES THE USE OF EQUIPMENT DETERMINED TO BE NECESSARY OR DESIRABLE BY A CONTRACTING AGENCY IS NOT RELEVANT TO THE WAGE DETERMINATION. ITS INCLUSION IN THE WAGE DETERMINATION AND IN CONTRACT SPECIFICATIONS IS UNAUTHORIZED. " PRECLUDES THE USE OF SPRAY PAINTERS IF THIS METHOD OF PAINTING IS NOT APPROVED BY A MAJORITY OF PAINTERS AND PAINTING CONTRACTORS IN THE AREA. THE INVITATION FOR BIDS WILL PROVIDE THAT ALL PAINT SUBSEQUENT TO THE FIRST COAT.

B-132044, JUNE 10, 1957, 36 COMP. GEN. 806

CONTRACTS - LABOR STIPULATIONS - DAVIS-BACON ACT - DIRECTIVE REQUIRING PERFORMANCE OF WORK IN ACCORDANCE WITH AREA LABOR PRACTICES A STIPULATION IN A DAVIS-BACON ACT WAGE PREDETERMINATION WHICH DIRECTS PERFORMANCE OF WORK IN ACCORDANCE WITH A LOCALLY PREVAILING PRACTICE WHICH PRECLUDES THE USE OF EQUIPMENT DETERMINED TO BE NECESSARY OR DESIRABLE BY A CONTRACTING AGENCY IS NOT RELEVANT TO THE WAGE DETERMINATION, AND, THEREFORE, ITS INCLUSION IN THE WAGE DETERMINATION AND IN CONTRACT SPECIFICATIONS IS UNAUTHORIZED.

TO THE SECRETARY OF THE ARMY, JUNE 10, 1957:

ON MAY 28, 1957, ASSISTANT SECRETARY OF THE ARMY F. H. HIGGINS REQUESTED OUR DECISION AS TO WHETHER A WAGE PREDETERMINATION BY THE SECRETARY OF LABOR UNDER THE DAVIS-BACON ACT, 40 U.S.C. 276A, ESTABLISHING A RATE FOR SPRAY PAINTERS "SUBJECT TO THE PRACTICE PREVAILING IN AREA," PRECLUDES THE USE OF SPRAY PAINTERS IF THIS METHOD OF PAINTING IS NOT APPROVED BY A MAJORITY OF PAINTERS AND PAINTING CONTRACTORS IN THE AREA.

THE SITUATION OUT OF WHICH THE PROBLEM ARISES EXISTS IN CONNECTION WITH EXTENSIVE PAINTING WORK TO BE CONTRACTED FOR AT FORT BELVOIR, VIRGINIA. THE INVITATION FOR BIDS WILL PROVIDE THAT ALL PAINT SUBSEQUENT TO THE FIRST COAT, ON EITHER EXTERIOR OR INTERIOR SURFACES, MAY BE APPLIED BY BRUSH, SPRAY, OR ROLLER. WITH RESPECT TO THE SPRAY METHOD, IT HAS BEEN CONCLUDED ADMINISTRATIVELY THAT A SATISFACTORY JOB CAN BE OBTAINED IN THIS MANNER, THAT SAFETY REGULATIONS IN FORCE FURNISH ADEQUATE PROTECTION TO WORKERS USING THE EQUIPMENT AND PAINT, AND THAT A CONSIDERABLE SAVINGS IN COST MAY BE EXPECTED.

THE ASSISTANT SECRETARY ADVISES, IN EFFECT, THAT THE PHRASE "SUBJECT TO THE PRACTICE PREVAILING IN AREA" HAS BEEN INTERPRETED BY SOME INTENDED BIDDERS AND PAINTERS' UNIONS TO MEAN THAT THE CONTRACTING OFFICER MUST HAVE THE PAINTING DONE IN ACCORDANCE WITH THE LABOR PRACTICE PREVAILING IN THE AREA AND THAT, SINCE THE AREA PRACTICE APPARENTLY PRECLUDES SPRAY PAINTING TO A LARGE IF NOT COMPLETE EXTENT (IN THIS PARTICULAR CASE ESTABLISHED BY COLLECTIVE BARGAINING AGREEMENTS BETWEEN PAINTERS' UNIONS AND PAINTING CONTRACTORS), YOUR DEPARTMENT IS CONCERNED THAT SUCH AN INTERPRETATION WILL RESTRICT ADVERTISING AND AWARD OF THE WORK TO BRUSH PAINTING ADVERSELY TO THE GOVERNMENT'S INTERESTS.

WHILE WE CANNOT UNDERTAKE TO EXPLAIN THE PRECISE MEANING OF THE PHRASE, IT WOULD NOT BE PROPER TO ELIMINATE POSSIBLE USE OF THE SPRAY METHOD. CONTRACT STIPULATIONS TENDING TO RESTRICT COMPETITION AND TO INCREASE THE COST OF PERFORMANCE--- AND THEREBY THE CHARGES AGAINST CONTRACT APPROPRIATIONS--- ARE UNAUTHORIZED UNLESS REASONABLY REQUISITE TO ACCOMPLISHMENT OF THE LEGISLATIVE PURPOSES OF THE CONTRACT APPROPRIATION, OR UNLESS SUCH STIPULATIONS ARE EXPRESSLY AUTHORIZED BY STATUTE. 18 COMP. GEN. 285; 20 COMP. GEN. 18. IN THE DAVIS-BACON ACT THE CONGRESS HAS PROVIDED THAT CONTRACTS COVERED BY ITS TERMS,"SHALL CONTAIN A PROVISION STATING THE MINIMUM WAGES TO BE PAID VARIOUS CLASSES OF LABORERS AND MECHANICS WHICH SHALL BE BASED UPON THE WAGES THAT WILL BE DETERMINED BY THE SECRETARY OF LABOR TO BE PREVAILING FOR THE CORRESPONDING CLASSES OF LABORERS AND MECHANICS EMPLOYED ON PROJECTS OF A CHARACTER SIMILAR TO THE CONTRACT WORK IN THE CITY, TOWN, VILLAGE OR OTHER CIVIL SUBDIVISION OF THE STATE IN WHICH THE WORK IS TO BE PERFORMED * * *.'

THIS PROVISION OF THE STATUTE IS DIRECTED TO THE DETERMINATION AND TO THE SPECIFICATION IN COVERED CONTRACTS OF WAGE RATES WHICH THE ACT REQUIRES THE CONTRACTORS AND SUBCONTRACTORS TO PAY AS MINIMUM WAGES TO THE VARIOUS CLASSES OF LABORERS AND MECHANICS THAT WILL BE EMPLOYED UPON THE WORK. THE QUOTED PROVISION AUTHORIZES THE SECRETARY OF LABOR TO INQUIRE INTO THE PRACTICES PREVAILING IN THE LOCALITY WITH RESPECT TO WAGE RATES PAID ON PROJECTS OF A CHARACTER SIMILAR TO THE CONTRACT WORK AND TO DETERMINE WHAT ARE THE LOCALLY PREVAILING WAGES FOR THE CORRESPONDING CLASSES OF LABORERS AND MECHANICS EMPLOYED ON SUCH PROJECTS. THIS REQUIRES THE SPECIFICATION OF THE CLASSIFICATION OF WORK FOR WHICH EACH WAGE RATE IS DETERMINED TO PREVAIL ON SUCH PROJECTS IN THE LOCALITY, AS WELL AS THE WAGE RATE ITSELF, BUT THE SECRETARY IS NOT GRANTED DISCRETION BY THE QUOTED PROVISION TO STIPULATE A CONTRACT CONDITION, WHETHER OR NOT BASED UPON PREVAILING LOCAL PRACTICE, WHICH HAS NO RELEVANCE TO THE WAGE REQUIREMENTS TO WHICH ITS TERMS ARE EXCLUSIVELY ADDRESSED. IF, THEREFORE, THE PARENTHETICAL PHRASE USED IN THE WAGE DETERMINATION SHOULD BE INTERPRETED AS A DIRECTIVE FOR THE PERFORMANCE OF THE WORK IN ACCORDANCE WITH A LOCALLY PREVAILING PRACTICE WHICH WOULD PRECLUDE THE USE OF EQUIPMENT DETERMINED TO BE NECESSARY OR DESIRABLE BY THE CONTRACTING AGENCY IN THE CARRYING OUT OF ITS RESPONSIBILITIES FOR OBTAINING SATISFACTORY WORK AT A MINIMUM COST TO THE GOVERNMENT, ITS INCLUSION IN THE WAGE DETERMINATION AND IN THE CONTRACT SPECIFICATIONS WOULD BE UNAUTHORIZED.

IN VIEW OF THE RESPONSIBILITIES OF THE SECRETARY OF LABOR IN THESE MATTERS, REORGANIZATION PLAN NO. 14 OF 1950, 64 STAT. 1267, AND THE PORTAL -TO-PORTAL ACT, 29 U.S.C. 251, THIS OPINION HAS BEEN DISCUSSED INFORMALLY WITH THE DEPARTMENT OF LABOR. SUCH DISCUSSIONS INDICATE NO DISAGREEMENT WITH THE CONCLUSIONS EXPRESSED HEREIN.