B-155188, FEB. 3, 1965

B-155188: Feb 3, 1965

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TO ICE MILLER DONADIO AND RYAN: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 9. WHICH WAS AWARDED ON AUGUST 15. THE MATERIALS FURNISHED BY THE LATTER COMPANY WERE PRODUCED AT A TEMPORARY PLANT LOCATED ON PRIVATELY OWNED PROPERTY SITUATED FROM ONE AND ONE-HALF TO FIVE MILES FROM THE PROJECT WORK. ADVISED THE INDIANA AUTHORITIES THAT THE ACTIVITIES OF SCOTT COUNTY IN FURNISHING MATERIALS FOR USE ON THE PROJECT WERE SUBJECT TO 23 U.S.C. 113 (A) AND THAT THE SCOTT COUNTY COMPANY WORKERS ACCORDINGLY WERE ENTITLED TO PAYMENT AT THE WAGE RATES PRESCRIBED BY THE DEPARTMENT OF LABOR THEREUNDER FOR THE TIME SPENT IN SUCH ACTIVITIES. WHILE WE HAVE RULED THAT THE DAVIS-BACON ACT DOES NOT UNDERTAKE TO PROVIDE MINIMUM WAGE COVERAGE FOR WORK OFF THE SITE OF A PROJECT (43 COMP.

B-155188, FEB. 3, 1965

TO ICE MILLER DONADIO AND RYAN:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 9, 1964, AND ENCLOSURE, CONCERNING THE CLAIM OF GEORGE E. DETZEL COMPANY AND OHIO EQUIPMENT AND SUPPLY COMPANY FOR MONEYS WITHHELD UNDER THE FEDERAL-AID HIGHWAY ACT OF 1956 FROM AMOUNTS DUE UNDER A CONTRACT BETWEEN THAT COMPANY AND THE STATE OF INDIANA FOR INTERSTATE HIGHWAY PROJECT I-65-2 (30) 54.

THE CONTRACT, WHICH WAS AWARDED ON AUGUST 15, 1960, CALLED FOR CONSTRUCTION OF BRIDGE STRUCTURES ON INTERSTATE HIGHWAY 65, NEAR SEYMOUR, INDIANA. THE CONTRACTORS ENTERED INTO AGREEMENTS WITH THE SCOTT COUNTY CONCRETE PRODUCTS COMPANY TO SUPPLY THE NECESSARY CONCRETE FOR USE IN THE PROJECT WORK. THE MATERIALS FURNISHED BY THE LATTER COMPANY WERE PRODUCED AT A TEMPORARY PLANT LOCATED ON PRIVATELY OWNED PROPERTY SITUATED FROM ONE AND ONE-HALF TO FIVE MILES FROM THE PROJECT WORK.

SECTION 113 (A), TITLE 23, U.S.C. (PUBLIC LAW 85-767, 72 STAT. 895), WHICH CODIFIED SECTION 115 OF THE FEDERAL-AID HIGHWAY ACT OF 1956, 70 STAT. 374, PROVIDES THAT THE SECRETARY OF COMMERCE ,SHALL TAKE SUCH ACTION AS MAY BE NECESSARY TO INSURE THAT ALL LABORERS AND MECHANICS EMPLOYED BY CONTRACTORS OR SUBCONTRACTORS ON THE INITIAL CONSTRUCTION WORK PERFORMED ON HIGHWAY PROJECTS ON THE INTERSTATE SYSTEM AUTHORIZED UNDER SECTION 108 (B) OF THE FEDERAL-AID HIGHWAY ACT OF 1956, SHALL BE PAID WAGES AT RATES NOT LESS THAN THOSE PREVAILING ON THE SAME TYPE OF WORK ON SIMILAR CONSTRUCTION IN THE IMMEDIATE LOCALITY AS DETERMINED BY THE SECRETARY OF LABOR IN ACCORDANCE WITH THE ACT OF AUGUST 30, 1935, KNOWN AS THE DAVIS- BACON ACT (40 U.S.C. 276A).'

THE BUREAU OF PUBLIC ROADS, U.S. DEPARTMENT OF COMMERCE, PURSUANT TO A RULING BY THE SOLICITOR OF LABOR, ADVISED THE INDIANA AUTHORITIES THAT THE ACTIVITIES OF SCOTT COUNTY IN FURNISHING MATERIALS FOR USE ON THE PROJECT WERE SUBJECT TO 23 U.S.C. 113 (A) AND THAT THE SCOTT COUNTY COMPANY WORKERS ACCORDINGLY WERE ENTITLED TO PAYMENT AT THE WAGE RATES PRESCRIBED BY THE DEPARTMENT OF LABOR THEREUNDER FOR THE TIME SPENT IN SUCH ACTIVITIES. PURSUANT THERETO THE INDIANA STATE HIGHWAY DEPARTMENT HAS WITHHELD THE SUM OF $17,037.74 FROM CONTRACT PAYMENTS OTHERWISE DUE YOUR CLIENTS TO ASSURE PAYMENT OF ADDITIONAL WAGES DEEMED DUE.

WHILE WE HAVE RULED THAT THE DAVIS-BACON ACT DOES NOT UNDERTAKE TO PROVIDE MINIMUM WAGE COVERAGE FOR WORK OFF THE SITE OF A PROJECT (43 COMP. GEN. 84), THE REFERENCE TO THE DAVIS-BACON ACT IN 23 U.S.C. 113 (A) DOES NOT MAKE APPLICABLE TO INTERSTATE HIGHWAY PROJECTS THE PROVISION OF SECTION 3 OF THE DAVIS-BACON ACT, AS AMENDED (40 U.S.C. 276A), UNDER WHICH THE GENERAL ACCOUNTING OFFICE IS GIVEN JURISDICTION TO MAKE FINDINGS AS TO PERSONS AND FIRMS WHO HAVE DISREGARDED THEIR OBLIGATIONS UNDER SAID ACT AND TO DISBURSE DIRECTLY TO LABORERS AND MECHANICS AMOUNTS WITHHELD FROM CONTRACTORS. B-144075, OCTOBER 13, 1960. FOR THIS REASON, AND SINCE THE HIGHWAY ACT CONFERRED NO SPECIAL FUNCTIONS OR DUTIES UPON OUR OFFICE, WE MUST ADVISE YOU THAT WE ARE NOT IN A POSITION TO RULE ON THE PROPRIETY OF THE SOLICITOR'S RULING OR THE ACTION OF THE BUREAU OF PUBLIC ROADS AT THIS TIME.