B-16920, JUNE 14, 1941, 20 COMP. GEN. 890

B-16920, JUNE 14, 1941, 20 COMP. GEN. 890

CONTRACTS - EIGHT-HOUR LAW - EFFECT OF OMISSION THE EIGHT-HOUR LAW OF 1912 IS A MANDATORY DIRECTION TO GOVERNMENT AGENTS TO INCLUDE THE PRESCRIBED PROVISIONS IN CERTAIN GOVERNMENT CONTRACTS AND IS NOT DIRECTED PRIMARILY AT CONTRACTORS WITH THE GOVERNMENT, SO THAT, WHERE A CONTRACT DOES NOT CONTAIN ITS PROVISIONS, THE ACT DOES NOT OF ITSELF BECOME BINDING UPON THE CONTRACTOR. ALTHOUGH A CONTRACTOR IS NOT SUBJECT TO THE EIGHT-HOUR LAW OF 1912 WHEN ITS PROVISIONS ARE NOT INCLUDED IN THE CONTRACT, IT IS WITHIN ADMINISTRATIVE AUTHORITY OR DISCRETION, IN A PROPER CASE, TO RESCIND OR AVOID THE CONTRACT UNLESS THE CONTRACTOR SUBSEQUENTLY AGREES TO SUCH INCLUSION, AND IT IS WITHIN THE AUTHORITY AND DISCRETION OF THE GENERAL ACCOUNTING OFFICE TO ALLOW OR REFUSE TO ALLOW CREDIT IN THE ACCOUNTS OF DISBURSING OFFICERS FOR PAYMENTS MADE UNDER SUCH CONTRACTS NOT INCLUDING SUCH PROVISIONS, DEPENDING UPON THE CIRCUMSTANCES AND THE CHARACTER OF THE CONTRACT INVOLVED IN THE PARTICULAR CASE. WHERE A DISCRETION AS TO THE APPLICABILITY OF STATUTORY PROVISIONS TO A PARTICULAR CONTRACT HAS BEEN CONFERRED UPON A GOVERNMENT OFFICER AND A CONTRACT IS MADE IN WHICH THAT DISCRETION HAS BEEN EXERCISED, THE VALIDITY OF THE CONTRACT IS NOT DEPENDENT UPON THE DEGREE OF WISDOM OR SKILL WITH WHICH THE DISCRETION MAY HAVE BEEN EXERCISED. WHILE AS A GENERAL PROPOSITION A CONTRACTING OFFICER EXCEEDS HIS AUTHORITY IN FAILING TO INCLUDE IN A CONTRACT TO WHICH APPLICABLE THE PROVISIONS OF THE EIGHT-HOUR LAW OF 1912, WHERE HE HAS DETERMINED, IN THE PROPER EXERCISE OF THE DISCRETION CONFERRED BY THAT LAW, THAT A PARTICULAR CONTRACT FALLS WITHIN ONE OF THE EXCEPTED CLASSES, THE CONTRACT NEED NOT BE MODIFIED TO INCLUDE SUCH PROVISIONS, AND PAYMENTS MADE THEREUNDER WILL NOT BE QUESTIONED BY THIS OFFICE BY REASON OF THE FAILURE TO INCLUDE IN THE CONTRACT THE REQUIREMENTS OF THAT LAW. WHERE A CONTRACTOR SUBSEQUENTLY AGREES TO THE INCLUSION OF THE PROVISIONS OF THE EIGHT-HOUR LAW OF 1912 IN A CONTRACT WHICH SHOULD HAVE BUT DID NOT CONTAIN THOSE PROVISIONS, THE CONTRACT AMENDMENT MAY BE BY A CHANGE ORDER ASSENTED TO BY THE CONTRACTOR.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, JUNE 14, 1941:

I HAVE YOUR LETTER OF MAY 9, 1941, AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH COPY OF CONTRACT NO. W6708-QM-98 WITH TUCKER MCCLURE AND THOMPSON-MARKHAM COMPANY, DATED MAY 7, 1940, TOGETHER WITH CHANGE ORDERS A, B, C, AND D. CONTRACT WAS EXECUTED ON BEHALF OF THE GOVERNMENT BY THE CONSTRUCTING QUARTERMASTER, PANAMA CANAL DEPARTMENT.

THE CONTRACT IS FOR THE FURNISHING OF CRUSHED ROCK. THE CONTRACTOR IS TO OBTAIN THE ROCK FROM GOVERNMENT-OWNED QUARRIES, CRUSH SAME TO VARIOUS SPECIFICATIONS, AND DELIVER TO LOADING BINS TO BE PICKED UP BY THE CONSTRUCTING QUARTERMASTER. THE CONTRACT FURTHER PROVIDES FOR THE CONSTRUCTION OF A CRUSHER PLANT BUILT IN ACCORDANCE WITH SPECIFICATIONS. THE COST OF THIS PLANT IS TO BE FIGURED IN THE UNIT PRICE OF THE CRUSHED ROCK. THE PLANT IS TO REVERT TO AND BECOME THE PROPERTY OF THE UNITED STATES AT THE TERMINATION OF THE CONTRACT.

WHEN ORIGINALLY EXECUTED BY THE PARTIES THERETO, THERE WAS OMITTED FROM THE CONTRACT ANY REFERENCE TO THE PROVISIONS OF THE EIGHT-HOUR LAW ALTHOUGH THE PROVISIONS OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT WERE INCLUDED. WHEN EXAMINED IN THIS OFFICE THE DEFICIENCY WAS NOTED AND THE CONTRACTING OFFICER WAS ADVISED THAT THE STIPULATIONS OF THE EIGHT-HOUR LAW WERE FOR APPLICATION AND WERE TO BE CONTAINED IN THE CONTRACT. THEREUPON CHANGE ORDERS B, C, AND D WERE ISSUED, INCORPORATING A STATEMENT PURSUANT TO THE EIGHT-HOUR LAW AND THE CHANGES MADE BY THE ACT OF JUNE 28, 1940, AND THE ACT OF SEPTEMBER 9, 1940.

THE CONTRACTORS HAVE ADVISED THAT THEY CANNOT OPERATE UNDER THE TERMS OF THE CHANGED ORDERS UNLESS ADDITIONAL COMPENSATION IS PAID. THEY PLACE RELIANCE UPON THE FACT THAT THE CONTRACT WAS SIGNED AS A SUPPLY CONTRACT AND THAT THE PROVISIONS OF THE EIGHT-HOUR LAW WERE NOT CONTAINED THEREIN. THE CONTENTION OF THE CONTRACTOR AS TO THE EXECUTION OF THE CONTRACT ON A SUPPLY FORM IS PATENTLY UNTENABLE, AS THE CONTRACT, WHILE ONE FOR SERVICES, WAS PROPERLY EXECUTED ON STANDARD FORM 32.

THE FOLLOWING QUESTIONS ARE PRESENTED FOR YOUR OPINION:

(1) INASMUCH AS THE ACT PROVIDES THAT "EVERY CONTRACT HEREAFTER MADE TO WHICH THE UNITED STATES * * * IS A PARTY, * * * SHALL CONTAIN A PROVISION THAT NO LABORER OR MECHANIC DOING ANY PART OF THE WORK CONTEMPLATED BY THE CONTRACT * * *," WHAT IS THE LEGAL EFFECT OF THE OMISSION OF SUCH PROVISION FROM THE CONTRACT?

(2) ASSUMING THAT IT IS HELD THAT SUCH PROVISION IS REQUIRED TO BE INSERTED IN THE CONTRACT EVEN AFTER EXECUTION, MAY SUCH INSERTION PROPERLY BE MADE BY CHANGE ORDER?

(3) MAY THE CONTRACTOR BE HELD TO COMPLIANCE WITH THE PROVISIONS OF THE CONTRACT AS MODIFIED BY CHANGE ORDERS B, C, AND D WITHOUT THE PAYMENT TO HIM OF ADDITIONAL COMPENSATION?

IT IS REQUESTED THAT THE ATTACHED ENCLOSURES BE RETURNED WITH YOUR OPINION.

THE EIGHT-HOUR LAW REFERRED TO IN YOUR LETTER IS THE ACT OF JUNE 19, 1912, 37 STAT. 137, WHICH, INSOFAR AS HERE PERTINENT, PROVIDES AS FOLLOWS:

BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT EVERY CONTRACT HEREAFTER MADE TO WHICH THE UNITED STATES, ANY TERRITORY, OR THE DISTRICT OF COLUMBIA IS A PART, AND EVERY SUCH CONTRACT MADE FOR OR ON BEHALF OF THE UNITED STATES, OR ANY TERRITORY, OR SAID DISTRICT, 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, IN THE EMPLOY OF THE CONTRACTOR OR ANY SUBCONTRACTOR CONTRACTING FOR ANY PART OF SAID WORK CONTEMPLATED, SHALL BE REQUIRED OR PERMITTED TO WORK MORE THAN EIGHT HOURS IN ANY ONE CALENDAR DAY UPON SUCH WORK; AND EVERY SUCH CONTRACT SHALL STIPULATE A PENALTY FOR EACH VIOLATION OF SUCH PROVISION IN SUCH CONTRACT OF FIVE DOLLARS FOR EACH LABORER OR MECHANIC FOR EVERY CALENDAR DAY IN WHICH HE SHALL BE REQUIRED OR PERMITTED TO LABOR MORE THAN EIGHT HOURS UPON SAID WORK; AND ANY OFFICER OR PERSON DESIGNATED AS INSPECTOR OF THE WORK TO BE PERFORMED UNDER ANY SUCH CONTRACT, OR TO AID IN ENFORCING THE FULFILLMENT THEREOF, SHALL, UPON OBSERVATION OR INVESTIGATION, FORTHWITH REPORT TO THE PROPER OFFICER OF THE UNITED STATES, OR OF ANY TERRITORY, OR OF THE DISTRICT OF COLUMBIA, ALL VIOLATIONS OF THE PROVISIONS OF THIS ACT DIRECTED TO BE MADE IN EVERY SUCH CONTRACT, TOGETHER WITH THE NAME OF EACH LABORER OR MECHANIC WHO HAS BEEN REQUIRED OR PERMITTED TO LABOR IN VIOLATION OF SUCH STIPULATION AND THE DAY OF SUCH VIOLATION, AND THE AMOUNT OF THE PENALTIES IMPOSED ACCORDING TO THE STIPULATION IN ANY SUCH CONTRACT SHALL BE DIRECTED TO BE WITHHELD FOR THE USE AND BENEFIT OF THE UNITED STATES, THE DISTRICT OF COLUMBIA, OR THE TERRITORY CONTRACTING BY THE OFFICER OR PERSON WHOSE DUTY IT SHALL BE TO APPROVE THE PAYMENT OF THE MONEYS DUE UNDER SUCH CONTRACT, WHETHER THE VIOLATION OF THE PROVISIONS OF SUCH CONTRACT IS BY THE CONTRACTOR OR ANY SUBCONTRACTOR. * * *

SEC. 2. THAT NOTHING IN THIS ACT SHALL APPLY TO CONTRACTS FOR TRANSPORTATION BY LAND OR WATER, OR FOR THE TRANSMISSION OF INTELLIGENCE, OR FOR THE PURCHASE OF SUPPLIES BY THE GOVERNMENT, WHETHER MANUFACTURED TO CONFORM TO PARTICULAR SPECIFICATIONS OR NOT, OR FOR SUCH MATERIALS OR ARTICLES AS MAY USUALLY BE BOUGHT IN OPEN MARKET, EXCEPT ARMOR AND ARMOR PLATE, WHETHER MADE TO CONFORM TO PARTICULAR SPECIFICATIONS OR NOT, OR TO THE CONSTRUCTION OR REPAIR OF LEVEES OR REVETMENTS NECESSARY FOR PROTECTION AGAINST FLOODS OR OVERFLOWS ON THE NAVIGABLE WATERS OF THE UNITED STATES: * * *. ( ITALICS SUPPLIED.)

THE SCOPE OF SAID ACT IN ITS APPLICATION TO CONTRACTS OF VARIOUS KINDS HAS BEEN THE SUBJECT OF NUMEROUS DECISIONS OF THIS OFFICE AND NEED NOT BE RECONSIDERED HERE. SEE GENERALLY, 17 COMP. GEN. 937; 18 ID. 337; ID. 585; ID. 646; ID. 672; AND 19 ID. 267.

AS STATED IN YOUR LETTER THE CONTRACT HERE INVOLVED REQUIRES THE CONTRACTOR TO OBTAIN ROCK FROM GOVERNMENT-OWNED QUARRIES; CRUSH IT TO VARIOUS SPECIFICATIONS; DELIVER SAME TO LOADING BINS; AND, IN CONNECTION THEREWITH, CONSTRUCT CRUSHER PLANTS IN ACCORDANCE WITH SPECIFICATIONS, WHICH PLANTS ARE TO BECOME THE PROPERTY OF THE GOVERNMENT UPON COMPLETION OF THE CONTRACT. PAYMENTS TO THE CONTRACTOR ARE BASED ON UNIT PRICES PER CUBIC YARD FOR CRUSHED ROCK FURNISHED. THE REQUIREMENTS OF THE EIGHT-HOUR LAW, SUPRA, WERE NOT MADE A PART OF THE CONTRACT AND YOUR FIRST QUESTION, THEREFORE, IS AS TO THE LEGAL EFFECT OF SUCH OMISSION.

THE EIGHT-HOUR LAW OF JUNE 19, 1912, IS A MANDATORY DIRECTION TO THE OFFICERS AND AGENTS OF THE GOVERNMENT TO INCLUDE IN CERTAIN CONTRACTS A PROVISION PROHIBITING THE EMPLOYMENT OF LABORERS AND MECHANICS IN EXCESS OF EIGHT HOURS IN ANY ONE CALENDAR DAY AND PROVIDING THAT EVERY SUCH CONTRACT SHALL STIPULATE A PENALTY FOR VIOLATION OF EACH SUCH PROVISION, ETC. CONSOLIDATED ENG. CO. V. UNITED STATES, 35 FED. SUPP. 980. THE ACT IS DIRECTED PRIMARILY AT GOVERNMENT OFFICERS AND NOT AT CONTRACTORS WITH THE GOVERNMENT. THE WORD "STIPULATE" HAS BEEN DEFINED AS MEANING TO MAKE AN AGREEMENT; TO CONTRACT WITH RESPECT TO; TO SETTLE TERMS; TO BARGAIN; TO AGREE UPON, ETC. LUMBER COMPANY V. HUBBERT, 112 F. 718, 724; WEBSTER'S NEW INTERNATIONAL DICTIONARY. IT WOULD HARDLY APPEAR, THEREFORE, THAT THERE COULD BE A "STIPULATION" IN A CONTRACT WITHOUT A LEGAL AGREEMENT THERETO BY THE CONTRACTOR.

IT IS TO BE NOTED THAT THE PENALTY SPECIFIED IN THE SAID ACT IS FOR VIOLATION OF "SUCH PROVISION IN SUCH CONTRACT.' IT APPEARS CLEAR, THEREFORE, THAT THE PRESCRIBED PENALTY, TO WHICH A CONTRACTOR HAD NOT AGREED, COULD NOT BE SUMMARILY IMPOSED WHEN NO SUCH PROVISION WAS CONTAINED IN THE CONTRACT OR OTHERWISE AGREED TO BY THE CONTRACTOR. THE REQUIREMENT THAT THE PROVISION AND STIPULATION BE MADE A PART OF THE CONTRACT NO DOUBT WAS FOR THE PURPOSE OF OBTAINING THE CONTRACTOR'S ASSENT THERETO AND THUS ENABLE THE GOVERNMENT TO ENFORCE THE PROVISIONS MORE READILY AND, IN THE EVENT OF VIOLATION THEREOF, TO ENABLE THE GOVERNMENT SUMMARILY TO WITHHOLD THE AMOUNT OF THE PENALTY FROM THE CONTRACT PRICE, AS A MATTER OF CONTRACTUAL RIGHT, WITHOUT A VIOLATION OF THE DUE PROCESS CLAUSE OF THE FEDERAL CONSTITUTION AND WITHOUT THE NECESSITY FOR JUDICIAL PROCEEDINGS. IN THIS CONNECTION IT IS TO BE NOTED THAT SECTION 2 OF THE ACT EXCEPTS FROM ITS PROVISIONS CERTAIN CLASSES OF CONTRACTS. IT IS HARDLY TO BE CONCEIVED, THEREFORE, THAT THE ACT IS AUTOMATICALLY BINDING UPON A CONTRACTOR UNDER A CONTRACT WHICH DOES NOT CONTAIN ITS PROVISIONS AND WHICH BOTH THE CONTRACTING OFFICER AND THE CONTRACTOR REASONABLY CONSIDERED TO BE WITHIN ONE OF THE EXCEPTED CLASSES.

AS INDICATING THAT THE STATUTE IS TO BE CONSTRUED AS BEING DIRECTED AT GOVERNMENT OFFICERS AND AGENTS, AND NOT AT CONTRACTORS, SEE 25 OP. ATTY. GEN. 441, WHEREIN IT IS STATED (P.444):

* * * CONGRESS MAY IF IT CHOOSES, FIX THE HOURS OF LABOR ON THE WORK OF THE UNITED STATES WHEREVER IT IS CONDUCTED AND MAKE THE LAW BINDING ON THE OFFICERS OF THE UNITED STATES AND, THROUGH THE AGENCY OF A CONTRACT, UPON CONTRACTORS WITH THE UNITED STATES. * * *

ALSO, SEE 34 OP. ATTY. GEN. 257. AND, IN PERKINS V. LUKENS STEEL CO., 310 U.S. 113, 127, THE SUPREME COURT STATED IN CONNECTION WITH THE PUBLIC CONTRACTS ACT, 49 STAT. 2036, WHICH CONTAINS LANGUAGE WITH RESPECT TO CONTRACTS ESSENTIALLY SIMILAR TO THAT HERE CONSIDERED, THAT:

* * * ACTING THROUGH ITS AGENTS AS IT MUST OF NECESSITY, THE GOVERNMENT MAY FOR THE PURPOSE OF KEEPING ITS OWN HOUSE IN ORDER LAY DOWN GUIDE POSTS BY WHICH ITS AGENTS ARE TO PROCEED IN THE PROCUREMENT OF SUPPLIES, AND WHICH CREATE DUTIES TO THE GOVERNMENT ALONE. IT HAS DONE SO IN THE PUBLIC CONTRACTS ACT. * * * IT IS A SELF-IMPOSED RESTRAINT FOR VIOLATION OF WHICH THE GOVERNMENT--- BUT NO PRIVATE LITIGANTS--- CAN COMPLAIN. * * *

* * * IN THIS LEGISLATION CONGRESS DID NO MORE THAN INSTRUCT ITS AGENTS WHO WERE SELECTED AND GRANTED FINAL AUTHORITY TO FIX THE TERMS AND CONDITIONS UNDER WHICH THE GOVERNMENT WILL PERMIT GOODS TO BE SOLD TO IT.

IN VIEW OF THE ABOVE AND SINCE THE CONTRACT HERE INVOLVED DID NOT INCLUDE THE PROVISION SPECIFIED IN THE EIGHT-HOUR LAW NOR THE STIPULATION AS TO THE PENALTY--- AND IT DOES NOT APPEAR THE CONTRACTOR OTHERWISE HAS AGREED THERETO--- IT MUST BE HELD THAT THE CONTRACTOR, NOT HAVING AGREED THERETO, IS NOT SUBJECT TO THE PENALTY SPECIFIED IN THE EIGHT-HOUR LAW IN THE EVENT IT EMPLOYS ITS LABORERS AND MECHANICS IN EXCESS OF 8 HOURS PER DAY WITHOUT PAYING TIME AND ONE-HALF FOR OVERTIME AS PROVIDED IN SECTION 303 OF THE ACT OF SEPTEMBER 9, 1940, PUBLIC, NO. 781, 54 STAT. 884.

BUT THE FAILURE TO INCLUDE IN CONTRACTS THE REQUIREMENTS OF THE SAID EIGHT-HOUR LAW IS NOT LIMITED IN ITS EFFECT TO THE MERE QUESTION OF WHETHER THE CONTRACTOR MAY WORK ITS LABORERS AND MECHANICS IN EXCESS OF 8 HOURS PER DAY WITHOUT BEING SUBJECT TO THE PENALTY SPECIFIED IN THE SAID ACT. AS STATED ABOVE, THE ACT IS A MANDATORY DIRECTION TO GOVERNMENT AGENTS TO INCLUDE THE PRESCRIBED PROVISION AND STIPULATION IN CERTAIN GOVERNMENT CONTRACTS. IT LIMITS THE AUTHORITY OF GOVERNMENT OFFICERS BY PRESCRIBING THE CONDITIONS UNDER WHICH SUCH CONTRACTS SHALL BE MADE, IT IN LEGAL EFFECT PROHIBITS ALL CONTRACTS MADE OTHERWISE AND THAT NO RECOVERY CAN BE HAD ON A CONTRACT PROHIBITED BY LAW. LENDER'S CASE, 7 CT.1CLS. 530; BARNES ET AL V. DISTRICT OF COLUMBIA, 22 CT.1CLS. 366. IT MAY BE SAID, THEREFORE, THAT AS A GENERAL PROPOSITION A CONTRACTING OFFICER EXCEEDS HIS AUTHORITY IN FAILING TO INCLUDE IN A CONTRACT TO WHICH APPLICABLE THE PROVISIONS OF THE EIGHT HOUR LAW OF 1912. AND IT IS A FAMILIAR RULE THAT THE UNAUTHORIZED ACTS OF THE GOVERNMENT AGENTS CAN NOT ESTOP THE GOVERNMENT FROM INSISTING UPON THEIR INVALIDITY. FILOR V. UNITED STATES, 9 WALL. 45. IN SOUTH BOSTON IRON CO. V. UNITED STATES. 118 U.S. 37, IT WAS HELD THAT THE UNITED STATES WAS NOT BOUND UNDER A CONTRACT NOT REDUCED TO WRITING AS REQUIRED BY SECTION 3744, REVISED STATUTES. ALSO, SEE CLARK V. UNITED STATES, 95 U.S. 539, WHEREIN SUCH RULE WAS APPLIED, ALTHOUGH THE COURT DID ALLOW RECOVERY ON A QUANTUM VALEBAT TO THE EXTENT OF THE PERFORMANCE. IN UNITED STATES V. NEW YORK AND PORTO RICO S.S. CO., 239 U.S. 88, THE COURT STATED THAT THE DUTY OF HAVING A CONTRACT REDUCED TO WRITING PURSUANT TO SECTION 3744, REVISED STATUTES, WAS IMPOSED UPON THE OFFICERS OF THE GOVERNMENT--- NOT UPON THE CONTRACTOR--- AND THAT A CONTRACT NOT COMPLYING WITH THE STATUTE COULD NOT BE ENFORCED AGAINST THE GOVERNMENT. ALSO, IT HAS BEEN HELD THAT SECTION 3709, REVISED STATUTES, REQUIRING CONTRACTS TO BE AWARDED AFTER ADVERTISING, IS MANDATORY AND THAT A CONTRACT IN VIOLATION THEREOF IS VOID. SCHNEIDER V. UNITED STATES, 19 CT.1CLS. 547. AND IN CONSOLIDATED SUPPLY COMPANY V. UNITED STATES, 59 CT.1CLS. 197, A CONTRACTOR WAS REFUSED A JUDGMENT FOR THE VALUE OF PRINTING WORK ORDERED BY THE GOVERNMENT, IN VIOLATION OF LAW, THE COURT STATING THAT: * * * WHERE A STATUTE IN EXPRESS LANGUAGE CIRCUMSCRIBES THE AUTHORITY AND POWER OF AN OFFICER OF THE GOVERNMENT AND EXPRESSLY DIRECTS THE MANNER OF SECURING SUPPLIES OF THE CHARACTER HERE FURNISHED, WE ARE NOT, IN THE ABSENCE OF SOME PRECEDENT TO THAT EFFECT, AUTHORIZED IN HOLDING THE UNITED STATES LIABLE FOR A CONTRACT MADE IN DIRECT OPPOSITION TO EXISTING LAW.

AND IN ALLIANCE CONSTRUCTION COMPANY V. UNITED STATES, 79 CT.1CLS. 730, WITH RESPECT TO THE ACT OF MARCH 3, 1931, 46 STAT. 1494, WHICH REQUIRED THAT "EVERY CONTRACT * * * SHALL CONTAIN A PROVISION" WITH RESPECT TO THE RATES OF WAGES TO BE PAID LABORERS AND MECHANICS, IT WAS STATED HAT: WHATEVER ELSE MAY BE SAID, IT IS UNDOUBTEDLY THE LAW THAT THE CONTRACT IN SUIT WOULD HAVE BEEN ONE WHICH THE CONTRACTING OFFICER WAS WITHOUT AUTHORITY TO MAKE IF HE HAD FAILED TO INSERT THE PROVISIONS OF THE ACT OF MARCH 3, 1931. * * *

IN VIEW OF THE FOREGOING IT CLEARLY IS WITHIN THE AUTHORITY OF THIS OFFICE, IN A PROPER CASE, IN THE EXERCISE OF THE DUTIES IMPOSED UPON IT BY LAW, TO REFUSE TO ALLOW CREDIT IN THE ACCOUNTS OF DISBURSING OFFICERS FOR PAYMENTS MADE UNDER CONTRACTS EXECUTED IN VIOLATION OF THE EIGHT-HOUR LAW OF 1912. AND IT WOULD SEEM TO BE WITHIN ADMINISTRATIVE AUTHORITY OR DISCRETION, IN A PROPER CASE, TO RESCIND OR AVOID A CONTRACT ENTERED INTO CONTRARY TO THE PROVISIONS OF THE SAID LAW UNLESS THE CONTRACTOR SUBSEQUENTLY WILL AGREE TO INCLUSION OF SUCH PROVISIONS IN THE CONTRACT AS REQUIRED BY LAW, IN WHICH EVENT IT WOULD BE PROPER TO AMEND THE CONTRACT BY A CHANGE ORDER ASSENTED TO BY THE CONTRACTOR. BUT THE ACTION TO BE TAKEN IN A PARTICULAR CASE, EITHER BY THIS OFFICE OR BY AN ADMINISTRATIVE OFFICE, WOULD SEEM TO BE FOR DETERMINATION IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES AND THE CHARACTER OF THE CONTRACT INVOLVED IN THE PARTICULAR CASE. ON THAT BASIS THIS OFFICE HAS AT TIMES ALLOWED CREDIT IN DISBURSING OFFICERS' ACCOUNTS FOR PAYMENTS MADE UNDER CONTRACTS WHICH DID NOT BUT WHICH SHOULD HAVE INCLUDED THE REQUIREMENTS OF THE SAID EIGHT-HOUR LAW. SEE 17 COMP. GEN. 937, AND 18 ID. 646.

WHILE IT IS THE VIEW OF THIS OFFICE THAT THE SUBJECT CONTRACT SHOULD HAVE INCLUDED THE REQUIREMENTS OF THE EIGHT-HOUR LAW OF 1912, THE NATURE OF THE CONTRACT AND THE FACTS AND CIRCUMSTANCES IN CONNECTION WITH ITS EXECUTION ARE NOT SUCH THAT THIS OFFICE IS REQUIRED TO OBJECT TO THE OMISSION OF THE REQUIREMENTS OF SAID LAW THEREFROM. THE CONTRACT CONTAINS NO SPECIFIC PROVISION LIMITING THE HOURS WHICH LABORERS AND MECHANICS MAY BE EMPLOYED ON THE WORK, IT CONTAINS NO REFERENCE TO THE EIGHT-HOUR LAW OF 1912, AND IT AUTHORIZES THE CONTRACTOR TO WORK HIS PLANT MORE THAN 8 HOURS PER DAY, IMPLYING, AT LEAST, THAT LABORERS AND MECHANICS ALSO MIGHT BE EMPLOYED MORE THAN 8 HOURS PER DAY. IT IS TO BE OBSERVED, TOO, THAT SECTION 2 OF THE SAID ACT EXCEPTS SEVERAL CLASSES OF CONTRACTS FROM THE PROVISIONS OF THE ACT AND NECESSARILY, IN AWARDING CONTRACTS, A CERTAIN AMOUNT OF DISCRETION MUST BE EXERCISED IN THE WAY OF DETERMINING WHETHER A PARTICULAR CONTRACT FALLS WITHIN THE EXCEPTIONS. IT HAS BEEN HELD THAT WHERE A DISCRETION OF THIS KIND HAS BEEN CONFERRED UPON AN OFFICER AND A CONTRACT IS MADE IN WHICH THAT DISCRETION HAS BEEN EXERCISED THAT THE VALIDITY OF THE CONTRACT CANNOT BE MADE TO DEPEND ON THE DEGREE OF WISDOM OR SKILL WHICH MAY HAVE ACCOMPANIED ITS EXERCISE. UNITED STATES V. SPEED, 8 WALL. 77. THE RECORD CONTAINS NOTHING TO INDICATE THAT THE OMISSION OF THE REQUIREMENTS OF THE EIGHT-HOUR LAW FROM THE SUBJECT CONTRACT WAS MERELY AN OVERSIGHT OR WAS FOR THE PURPOSE OF CONTRAVENING THE LAW; AND IN THE ABSENCE OF SUCH A SHOWING IT IS TO BE PRESUMED THAT THE CONTRACTING OFFICER WAS ACTING IN ACCORDANCE WITH LAW AND CONSIDERED, IN THE NECESSARY EXERCISE OF HIS DISCRETION, THAT THE CONTRACT FELL WITHIN ONE OF THE CLASSES OF EXCEPTIONS AND WAS NOT SUBJECT TO THE PROVISIONS OF THE LAW. SUCH PRESUMPTION IS SUPPORTED BY THE FACT THAT, IN AN OBVIOUS ATTEMPT TO COMPLY WITH STATUTORY REQUIREMENTS, THE CONTRACTING OFFICER ORIGINALLY INCLUDED IN THE SPECIFICATIONS A REQUIREMENT THAT THE SUCCESSFUL BIDDER COMPLY WITH THE WALSH-HEALEY ACT, 49 STAT. 2036, WHICH RELATES TO CONTRACTS "FOR THE MANUFACTURE OF FURNISHING OF MATERIALS, SUPPLIES, ARTICLES, AND EQUIPMENT.' SUCH REQUIREMENT SUBSEQUENTLY WAS REMOVED FROM THE SPECIFICATIONS, BUT SOLELY ON THE BASIS OF A RULING BY THE DEPARTMENT OF LABOR THAT THE WALSH-HEALEY ACT DID NOT APPLY TO WORK IN THE CANAL ZONE AND NOT BY REASON OF A DIFFERENT DETERMINATION BY THE CONTRACTING OFFICER AS TO THE NATURE OF THE CONTRACT AND THE STATUTORY PROVISIONS APPLICABLE THERETO.

UNDER THE CIRCUMSTANCES CREDIT FOR PAYMENTS MADE OR TO BE MADE UNDER THE SUBJECT CONTRACT WILL NOT BE DISALLOWED BY THIS OFFICE BY REASON OF THE FAILURE TO INCLUDE IN THE CONTRACT THE REQUIREMENTS OF THE EIGHT HOUR LAW OF 1912. CONSEQUENTLY, THERE WOULD APPEAR TO BE NO NECESSITY FOR A MODIFICATION OF THE CONTRACT IN THAT RESPECT.

THE ENCLOSURES FORWARDED WITH YOUR LETTER ARE RETURNED HEREWITH AS REQUESTED.