B-144075, NOV. 16, 1960

B-144075: Nov 16, 1960

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TO THE SECRETARY OF LABOR: REFERENCE IS MADE TO THE LETTER OF THE ACTING SECRETARY OF LABOR DATED OCTOBER 20. WHICH WE ARE REQUIRED TO ADMINISTER. WEITZEL'S LETTER OF OCTOBER 13 UNTIL HE HAD OPPORTUNITY TO REVIEW AND CONSIDER THE POSSIBLE PERTINENCE OF A RECENT OPINION OF THE ATTORNEY GENERAL WHICH WAS ENCLOSED WITH MY LETTER. SINCE I HAVE HAD NO REPLY TO MY LETTER. IT WAS DISTURBING TO LEARN THAT MR. WEITZEL'S LETTER WAS IN RESPONSE TO THIS DEPARTMENT'S RECOMMENDATION FOR DEBARMENT OF A CONTRACTOR UNDER THE DAVIS-BACON ACT AND RAISES NEW AND IMPORTANT QUESTIONS OF CONSTRUCTION OF STATUTES ADMINISTERED BY THIS DEPARTMENT WHICH APPEAR TO ME TO WARRANT THE MOST CAREFUL CONSIDERATION AND DISCUSSION BETWEEN OUR RESPECTIVE OFFICES.

B-144075, NOV. 16, 1960

TO THE SECRETARY OF LABOR:

REFERENCE IS MADE TO THE LETTER OF THE ACTING SECRETARY OF LABOR DATED OCTOBER 20, 1960, TRANSMITTING A COPY OF AN OPINION BY THE ATTORNEY GENERAL, DATED SEPTEMBER 26, 1960, TO THE SECRETARY OF COMMERCE, DEALING WITH APPLICABILITY OF THE MINIMUM WAGE PROVISIONS OF SECTION 115 OF THE FEDERAL-AID HIGHWAY ACT OF 1956, 23 U.S.C. 113, TO OWNER-OPERATORS OF TRUCKS ENGAGED IN CONSTRUCTION WORK ON FEDERALLY ASSISTED HIGHWAY PROJECTS. THE LETTER REQUESTS THAT OUR DECISION OF OCTOBER 13, 1960, TO YOU, HOLDING THAT THE PENALTY PROVISIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, WHICH WE ARE REQUIRED TO ADMINISTER, DO NOT APPLY TO CONSTRUCTION WORK UNDER THE FEDERAL-AID HIGHWAY ACT, BE REVIEWED IN THE LIGHT OF THE ATTORNEY GENERAL'S OPINION. A SUPPLEMENTARY LETTER ALSO HAS BEEN RECEIVED FROM THE UNDER SECRETARY OF LABOR, DATED NOVEMBER 8, 1960, STATING AS FOLLOWS:

"IN MY LETTER OF OCTOBER 20, I RESERVED COMMENT ON MR. WEITZEL'S LETTER OF OCTOBER 13 UNTIL HE HAD OPPORTUNITY TO REVIEW AND CONSIDER THE POSSIBLE PERTINENCE OF A RECENT OPINION OF THE ATTORNEY GENERAL WHICH WAS ENCLOSED WITH MY LETTER. SINCE I HAVE HAD NO REPLY TO MY LETTER, IT WAS DISTURBING TO LEARN THAT MR. WEITZEL'S LETTER OF OCTOBER 13 HAD BEEN PUBLISHED, IN PERTINENT PART, IN THE UNITED STATES LAW WEEK ON NOVEMBER 1.

"SINCE MR. WEITZEL'S LETTER WAS IN RESPONSE TO THIS DEPARTMENT'S RECOMMENDATION FOR DEBARMENT OF A CONTRACTOR UNDER THE DAVIS-BACON ACT AND RAISES NEW AND IMPORTANT QUESTIONS OF CONSTRUCTION OF STATUTES ADMINISTERED BY THIS DEPARTMENT WHICH APPEAR TO ME TO WARRANT THE MOST CAREFUL CONSIDERATION AND DISCUSSION BETWEEN OUR RESPECTIVE OFFICES, MAY I RESPECTFULLY SUGGEST THAT IT WOULD BE APPROPRIATE TO WITHDRAW THE PUBLISHED OPINION UNTIL THE OPPORTUNITY FOR THIS CONSIDERATION AND DISCUSSION HAS BEEN AFFORDED. A REPLY TO MY LETTER OF OCTOBER 20 IN LINE WITH THIS SUGGESTION WOULD ALSO BE APPRECIATED.'

PRIOR TO PREPARATION OF OUR DECISION OF OCTOBER 13, 1960, WE WERE AWARE OF THE ATTORNEY GENERAL'S OPINION OF SEPTEMBER 26, 1960, AND GAVE CAREFUL CONSIDERATION TO THAT OPINION. IN FACT, OUR REPRESENTATIVES HAD INFORMAL DISCUSSIONS WITH REPRESENTATIVES OF THE DEPARTMENT OF JUSTICE FOR THE PURPOSE OF EXPLORING ANY POSSIBILITY THAT A CONSTRUCTION AT VARIANCE WITH OUR INTERPRETATION SHOULD HAVE BEEN PLACED UPON THE ATTORNEY GENERAL'S OPINION. NOTWITHSTANDING OUR PREVIOUS CONSIDERATION OF THE ATTORNEY GENERAL'S OPINION, WE WILL, OF COURSE, RECONSIDER THE MATTER AND, AS REQUESTED, WE HAVE TEMPORARILY WITHDRAWN THE OCTOBER 13 DECISION FROM PUBLICATION.

IT IS NOTED FROM THE UNDER SECRETARY'S LETTER OF NOVEMBER 8 THAT A DISCUSSION OF THE MATTER BETWEEN REPRESENTATIVES OF OUR RESPECTIVE OFFICES MIGHT BE HELPFUL. WE WILL BE GLAD TO PARTICIPATE IN SUCH A DISCUSSION AND IT IS SUGGESTED THAT YOUR REPRESENTATIVE CONTACT MR. J. E. WELCH, DEPUTY GENERAL COUNSEL (CODE 129--- EXTENSION 3563), TO ARRANGE A MEETING. THIS CONNECTION, WE NOTE BY LETTER DATED NOVEMBER 8, 1960, TO THE ATTORNEY GENERAL, THE SECRETARY OF COMMERCE HAS STATED THAT IT IS HIS UNDERSTANDING THAT UNDER THE OPINION OF SEPTEMBER 26, 1960, THE ONLY FUNCTION OF THE SECRETARY OF LABOR UNDER THE PREVAILING WAGE REQUIREMENTS OF SECTION 113 OF TITLE 23 U.S.C. IS TO PREDETERMINE PREVAILING WAGES IN ACCORDANCE WITH THE DAVIS-BACON ACT, SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 113 (B) OF TITLE 23 U.S.C.; AND THAT NO OTHER PROVISIONS OF THE DAVIS-BACON ACT (SUCH AS THE SANCTIONS CONTAINED IN SECTION 3 OF SAID ACT) ARE APPLICABLE TO STATE CONTRACTS FOR THE FEDERAL-AID HIGHWAY CONSTRUCTION PROGRAM.

THE SECRETARY OF COMMERCE GOES ON TO STATE THAT IT IS PROPOSED TO PROCEED WITH THE ADMINISTRATION OF THE FEDERAL AND FEDERAL-AID HIGHWAY PROGRAM ON THE BASIS OF THIS UNDERSTANDING, AS WELL AS OTHER UNDERSTANDINGS COVERED IN THE LETTER OF NOVEMBER 8, UNLESS THE ATTORNEY GENERAL SHOULD ADVISE THAT SUCH UNDERSTANDINGS DO NOT PROPERLY REFLECT THE POSITION TAKEN IN THE OPINION OF SEPTEMBER 26, 1960. IN VIEW OF THE ABOVE, YOU MAY WISH TO POSTPONE ANY DISCUSSION WITH US UNTIL THE MATTERS RAISED IN THE LETTER OF THE SECRETARY OF COMMERCE OF NOVEMBER 8 HAVE BEEN CONSIDERED BY THE ATTORNEY GENERAL.