B-173734, SEP 7, 1971

B-173734: Sep 7, 1971

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WHILE IT IS PROTESTANT'S POSITION THAT THE PRESCRIBED WORK COMES UNDER THE LOWER WAGE CLASSIFICATIONS SET OUT IN THE HEAVY AND HIGHWAY CONSTRUCTION SCHEDULE. THE PREVAILING PRACTICE IN THE FORT HOOD AREA IS TO ABIDE BY LINE CONSTRUCTION WAGE RATES. IF EMPLOYEES WHO CAN PROPERLY BE OTHERWISE CLASSIFIED ARE IN FACT USED IN PERFORMANCE OF THE CONTRACT. IS UNABLE TO CONCLUDE THAT THE IFB IS DEFICIENT IN THIS REGARD. YOU MAINTAIN THAT THE IFB IS DEFICIENT TO THE EXTENT THAT IT INCLUDES (FROM THE APPLICABLE DEPARTMENT OF LABOR WAGE RATE DETERMINATION) ONLY THE LINE CONSTRUCTION SCHEDULE FOR FOUR WAGE RATE CLASSIFICATIONS. COMES UNDER THE LOWER WAGE RATE CLASSIFICATIONS SET OUT IN THE HEAVY AND HIGHWAY CONSTRUCTION SCHEDULE WHICH IS CONTAINED IN THE SAME WAGE RATE DETERMINATION.

B-173734, SEP 7, 1971

BID PROTEST - WAGE RATE DETERMINATION DECISION DENYING PROTEST AGAINST AWARD OF ANY CONTRACT UNDER AN IFB ISSUED BY THE FORT WORTH DISTRICT CORPS OF ENGINEERS, FOR THE CONSTRUCTION OF ADDITIONAL ELECTRICAL TRANSMISSION LINES AT FORT HOOD, TEXAS. IN ACCORDANCE WITH THE DAVIS-BACON ACT, THE IFB INCLUDED A CLAUSE MAKING APPLICABLE TO THE CONTRACT THE WAGES AND FRINGE BENEFITS PRESCRIBED IN A WAGE DETERMINATION ISSUED BY THE DEPARTMENT OF LABOR - THE LINE CONSTRUCTION SCHEDULE. WHILE IT IS PROTESTANT'S POSITION THAT THE PRESCRIBED WORK COMES UNDER THE LOWER WAGE CLASSIFICATIONS SET OUT IN THE HEAVY AND HIGHWAY CONSTRUCTION SCHEDULE, THE RECORD INDICATES THAT FOR THE TYPE OF WORK CONTEMPLATED BY THE IFB, THE PREVAILING PRACTICE IN THE FORT HOOD AREA IS TO ABIDE BY LINE CONSTRUCTION WAGE RATES. FURTHER, SINCE THE PROPOSED CONTRACT PROVIDES FOR THE USE OF OTHER CLASSIFICATIONS, IF EMPLOYEES WHO CAN PROPERLY BE OTHERWISE CLASSIFIED ARE IN FACT USED IN PERFORMANCE OF THE CONTRACT, THE COMP. GEN. IS UNABLE TO CONCLUDE THAT THE IFB IS DEFICIENT IN THIS REGARD.

TO DELTA ELECTRIC CONSTRUCTION COMPANY:

WE REFER TO YOUR PROTEST, BY TELEGRAM OF JULY 30, 1971, AS SUPPLEMENTED BY SUBSEQUENT CORRESPONDENCE, AGAINST AWARD OF ANY CONTRACT UNDER INVITATION FOR BIDS (IFB) DACA63-72-B-0010, ISSUED JULY 14, 1971, BY THE FORT WORTH DISTRICT, CORPS OF ENGINEERS, UNITED STATES ARMY, FORT WORTH, TEXAS.

AS DISCUSSED IN DETAIL BELOW, YOU MAINTAIN THAT THE IFB IS DEFICIENT TO THE EXTENT THAT IT INCLUDES (FROM THE APPLICABLE DEPARTMENT OF LABOR WAGE RATE DETERMINATION) ONLY THE LINE CONSTRUCTION SCHEDULE FOR FOUR WAGE RATE CLASSIFICATIONS, WHEREAS SOME OF THE WORK, IN YOUR OPINION, COMES UNDER THE LOWER WAGE RATE CLASSIFICATIONS SET OUT IN THE HEAVY AND HIGHWAY CONSTRUCTION SCHEDULE WHICH IS CONTAINED IN THE SAME WAGE RATE DETERMINATION. YOU THEREFORE CONTEND THAT THE PROJECT SHOULD BE READVERTISED UNDER A "PROPER AND COMPLETE" INVITATION WHICH INCLUDES BOTH SCHEDULES.

THE CONTRACT WORK, WHICH IS TO BE PERFORMED AT FORT HOOD, TEXAS, INVOLVES THE CONSTRUCTION OF ADDITIONAL ELECTRICAL TRANSMISSION LINES AND IS DESCRIBED ON THE FACE OF THE IFB AS FOLLOWS:

"THE WORK CONSISTS OF FURNISHING ALL PLANT, LABOR, MATERIALS, AND EQUIPMENT AND PERFORMING ALL WORK IN STRICT ACCORDANCE WITH THESE SPECIFICATIONS AND DRAWINGS FORMING PARTS THEREOF FOR CONSTRUCTION OF ELECTRICAL DISTRIBUTION SYSTEM IMPROVEMENTS."

IN ACCORDANCE WITH THE PROVISIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, THE IFB INCLUDES A CLAUSE MAKING APPLICABLE TO THE CONTRACT THE MINIMUM WAGES AND FRINGE BENEFITS PRESCRIBED IN A WAGE DETERMINATION ISSUED BY THE DEPARTMENT OF LABOR. THE CLAUSE, WHICH IS IN CONFORMANCE WITH THE CLAUSE PRESCRIBED IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 18-703.1, INCLUDES THE FOLLOWING PERTINENT PARAGRAPH:

"(D) THE CONTRACTING OFFICER SHALL REQUIRE THAT ANY CLASS OF LABORERS OR MECHANICS WHICH IS NOT LISTED IN THE WAGE DETERMINATION DECISION AND WHICH IS TO BE EMPLOYED UNDER THE CONTRACT SHALL BE CLASSIFIED OR RECLASSIFIED CONFORMABLY TO THE WAGE DETERMINATION DECISION, AND SHALL REPORT THE ACTION TAKEN TO THE SECRETARY OF LABOR. IF THE INTERESTED PARTIES CANNOT AGREE ON THE PROPER CLASSIFICATION OR RECLASSIFICATION OF A PARTICULAR CLASS OF LABORERS, OR MECHANICS TO BE USED, THE CONTRACTING OFFICER SHALL SUBMIT THE QUESTION, TOGETHER WITH HIS RECOMMENDATION, TO THE SECRETARY OF LABOR FOR FINAL DETERMINATION."

THE APPLICABLE WAGE RATE DETERMINATION, WHICH IS ATTACHED TO THE IFB, IS DECISION NO. AK-19,065 OF THE SECRETARY OF LABOR, ISSUED ON MAY 12, 1971, AND THE LOCATION OF THE PROJECT IS GIVEN AS FORT HOOD, ADJACENT TO KILEEN, TEXAS, IN BELL AND CORYELL COUNTIES, TEXAS. THE LINE CONSTRUCTION SCHEDULE INCORPORATED IN THE IFB COVERS WAGES AND FRINGE BENEFITS FOR LINEMEN, CABLE SPLICERS, EQUIPMENT OPERATORS AND WELDERS, AND GROUNDMEN. BENEATH THE SCHEDULE THERE APPEARS THE FOLLOWING PARAGRAPH:

"EXPLANATORY NOTE: IN ADDITION TO THE WAGE RATES SET FORTH IN THIS INVITATION FOR BID, THE COMPLETE DECISION OF THE SECRETARY OF LABOR CONTAINS WAGE RATES FOR OTHER CLASSES OF LABORERS AND MECHANICS. BECAUSE IT DOES NOT APPEAR THAT THE WORK CALLED FOR BY THIS INVITATION FOR BID WILL REQUIRE THE USE OF SUCH OTHER CLASSES, THE WAGE RATES APPLICABLE TO THEM HAVE NOT BEEN REPRINTED HEREIN. BIDDERS DESIRING THE COMPLETE DECISION MAY REQUEST IT FROM THE CONTRACTING OFFICER."

BY LETTER DATED JULY 23, 1971, YOU SUBMITTED TO THE PROCURING ACTIVITY A REQUEST THAT THE IFB BE AMENDED TO INCLUDE THE COMPLETE TEXT OF WAGE DECISION NO. AK-19,065 IN ORDER TO AVOID THE NEED FOR NUMEROUS ADDITIONAL CLASSIFICATION REQUESTS BY THE SUCCESSFUL BIDDER AFTER AWARD. IN THIS CONNECTION, YOU MADE THE FOLLOWING PERTINENT STATEMENTS:

" *** THE IMPLIED REQUIREMENT OF THE INVITATION THAT ALL OF THE WORK IS TO BE PERFORMED WITH ONLY THE FOUR CLASSIFICATIONS LISTED, INCLUDING SUCH MENIAL TASKS AS PICK AND SHOVEL WORK, LOADING AND UNLOADING OF MATERIALS, OPERATING OF SMALL EQUIPMENT SUCH AS 1/2 TON PICKUPS, 1-1/2 TON FLATBED TRUCKS, WHEELBARROWS, 1-1/2 TON A-FRAME WINCH TRUCKS, AND PORTABLE AIR COMPRESSORS WOULD RESULT IN A FLAGRANT, IRRESPONSIBLE WASTE OF THE TAX PAYERS MONEY AND WOULD MOST CERTAINLY BE CONTRARY TO THE PRESIDENT'S ANNOUNCED POLICY OF CURBING INFLATION AND GOVERNMENT COSTS WHEREVER POSSIBLE. ADDITIONALLY, THE DECISION AS IT NOW STANDS, WITH ALL ITS IMPLICATIONS, IS CONTRARY TO GENERALLY ACCEPTED PRACTICES OF THE INDUSTRY FOR THIS TYPE CONSTRUCTION AND HAS THE EFFECT OF IMPOSING RESTRICTED, IRRESPONSIBLE WORK RULES ON CONTRACTORS AND EMPLOYEES WHO ARE NOT A PARTY TO ANY COLLECTIVE BARGAINING AGREEMENT."

IN RESPONSE TO YOUR REQUEST, THE PROCURING ACTIVITY ADVISED YOU BY LETTER OF JULY 28, 1971, OF THE REQUIREMENTS OF ASPR 18-704.2(F), RELATING TO WORK IN AN AREA COVERED BY EITHER A GENERAL WAGE DETERMINATION OR AN AREA OR INSTALLATION DETERMINATION, THAT THERE BE INCLUDED IN PROCUREMENT SOLICITATIONS ONLY THE RATE SCHEDULE OR INDIVIDUAL RATES APPLICABLE TO THE PARTICULAR TYPE OF CONSTRUCTION INVOLVED AND AN EXPLANATORY NOTE COVERING ALL OR PART OF THE SCHEDULES EXCLUDED PURSUANT TO THE REGULATION. YOU WERE ALSO INFORMED THAT THE WAGE DETERMINATION FOR FORT HOOD IS AN "INSTALLATION" DECISION.

WITH RESPECT TO THE BASIS ON WHICH THE PROCURING ACTIVITY EXCLUDED THE OTHER THREE DECISION NO. AK-19,065 WAGE SCHEDULES FROM THE IFB, YOU WERE ADVISED AS FOLLOWS:

"THE BUILDING CONSTRUCTION SCHEDULE AND THE PAVING AND UTILITIES INCIDENTAL TO BUILDING CONSTRUCTION SCHEDULE ARE NOT INCLUDED IN THE INVITATION BECAUSE THERE IS NO BUILDING CONSTRUCTION REQUIRED. THE HEAVY AND HIGHWAY CONSTRUCTION SCHEDULE IS NOT INCLUDED IN THE INVITATION BECAUSE THERE IS NO WORK REQUIRED INVOLVING HIGHWAY OR HEAVY CONSTRUCTION SUCH AS ROADS, STREETS, GRADING, PAVING, EXCAVATION, FENCING, WATER, SEWER OR GAS SERVICES, ETC.

"ALL SOLICITATIONS FOR CONSTRUCTION CONTRACTS AT FORT HOOD AFTER IMPLEMENTATION OF DEPARTMENT OF LABOR MEMORANDUM NO. 68 AND ISSUANCE OF WAGE DETERMINATIONS CONTAINING A LINE CONSTRUCTION SCHEDULE HAVE CONTAINED WRITTEN DEFINITIONS THAT THE LINE CONSTRUCTION SCHEDULE WAS APPLICABLE TO ELECTRICAL DISTRIBUTION CONSTRUCTION. IN VIEW OF THIS PREVAILING PRACTICE, THE LINE CONSTRUCTION SCHEDULE OF WAGE DECISION NO. AK-19,065 WAS DETERMINED APPLICABLE TO THE CONSTRUCTION REQUIREMENTS OF, AND WAS ISSUED WITH, INVITATION DACA63-72-B-0010.

"FOR YOUR INFORMATION THIS OFFICE IS CURRENTLY ADMINISTERING TWO CONTRACTS AT FORT HOOD. THE CONTRACTS ARE INCREMENT 1 AND INCREMENT 2 FOR E. M. BARRACKS COMPLEX, BOTH REQUIRING A CONSIDERABLE AMOUNT OF ELECTRICAL DISTRIBUTION CONSTRUCTION. THE LINE CONSTRUCTION SCHEDULE OF THE APPLICABLE WAGE DECISION IS CONTAINED IN EACH CONTRACT AND IS BEING APPLIED TO ALL ELECTRICAL DISTRIBUTION CONSTRUCTION. IN ADDITION, THE CONTRACTING OFFICER AT FORT HOOD ADVISES THAT THEY HAVE ADMINISTERED RECENT CONTRACTS DABD09-69-C-0267, 70-C-0058, AND 70-C 0142 FOR ELECTRICAL DISTRIBUTION CONSTRUCTION UTILIZING ONLY THE LINE CONSTRUCTION SCHEDULE OF THE FORT HOOD WAGE DETERMINATIONS FURNISHED BY THE DEPARTMENT OF LABOR.

"IN THE EVENT YOU HAVE INFORMATION OR DATA TO SUBSTANTIATE THAT ELECTRICAL DISTRIBUTION CONSTRUCTION AT FORT HOOD, TEXAS, SUCH AS ADVERTISED BY INVITATION NO. DACA63-72-B-0010, IS NOT TO BE PERFORMED WITH THE CLASSIFICATIONS FURNISHED IN THE LINE CONSTRUCTION SCHEDULE OF THE WAGE DETERMINATION, IT IS SUGGESTED THAT THE DAVIS-BACON ACT SECTION OF THE DEPARTMENT OF LABOR BE SO NOTIFIED."

IN YOUR PROTEST TO OUR OFFICE YOU LIST SEVEN CLASSIFICATIONS OF WORKERS, WHICH YOU CLAIM WILL BE REQUIRED FOR PROPER PERFORMANCE OF THE CONTRACT WORK, AND YOU POINT OUT THAT THE WAGE RATES FOR THESE WORKERS, AS SET OUT IN THE HEAVY AND HIGHWAY CONSTRUCTION SCHEDULE IN DECISION NO. AK-19,065, ARE SUBSTANTIALLY LOWER THAN THE LINE CONSTRUCTION SCHEDULE RATES APPLIED BY THE PROCURING ACTIVITY TO THE WORK. IN ADDITION, YOU STATE THAT GOVERNING PROVISIONS ESTABLISHED BY THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA CLEARLY INCLUDE ALL OUTSIDE ELECTRICAL DISTRIBUTION WORK UNDER THE DESCRIPTION OF HEAVY CONSTRUCTION, AND YOU CONSIDER SUCH FACTOR AS EVIDENCE THAT THE DETERMINATION OF THE PROCURING ACTIVITY THAT HEAVY AND HIGHWAY CONSTRUCTION IS NOT INVOLVED IN THE FORT HOOD PROJECT IS IN ERROR.

YOU FURTHER CONTEND THAT THE POLICY OF THE CONTRACTING AGENCIES AND/OR THE DEPARTMENT OF LABOR OF FOLLOWING THE PREVAILING PRACTICE IN THE WORK AREA INVOLVED WITH RESPECT TO WORK CLASSIFICATIONS IS HIGHLY IMPROPER, SINCE IT CONTRIBUTES TO INFLATION; WASTES THE TAXPAYERS' MONEY BY MATERIALLY INCREASING GOVERNMENT COSTS; WASTES THE TALENTS OF SKILLED WORKMEN AND THEREBY CONTRIBUTES TO A SHORTAGE OF QUALIFIED TECHNICIANS IN AREAS WHERE NEEDED; INCREASES UNEMPLOYMENT BY DENYING WORK TO UNSKILLED AND SEMI-SKILLED WORKMEN; CONTRIBUTES TO WORK STOPPAGES INCIDENT TO JURISDICTIONAL DISPUTES CREATED AMONG VARIOUS CRAFT UNIONS IF A UNION CONTRACTOR IS THE SUCCESSFUL BIDDER; AND IMPOSES AT THE EXPENSE OF THE TAXPAYERS, RESTRICTIVE, IRRESPONSIBLE WORK RULES ON EMPLOYEES AND EMPLOYERS WHO ARE NOT SIGNATORY TO ANY COLLECTIVE BARGAINING AGREEMENT.

THE RECORD ON THE INSTANT PROCUREMENT INDICATES THAT BIDS WERE OPENED AS SCHEDULED ON AUGUST 4, AND YOUR BID OF $179,797 RANKED THIRD IN A GROUP OF 12 BIDS RANGING FROM $150,477.30 TO $500,000. NO EXCEPTION WAS TAKEN IN ANY OF THE BIDS TO THE IFB REQUIREMENTS. FURTHER, OF THE 32 CONTRACTORS TO WHOM PLANS AND SPECIFICATIONS WERE DISTRIBUTED ONLY YOUR FIRM PROTESTED THE IFB. THE ONLY OTHER PROTEST WAS MADE BY THE HEAVY-HIGHWAY BRANCH OF THE TEXAS ASSOCIATED GENERAL CONTRACTORS, WHICH IS DISCUSSED BELOW.

THE CONTRACTING OFFICER REPORTS THAT COMMENCING WITH WAGE DECISION NO. AH -3,443, DATED AUGUST 12, 1967, A SEPARATE CLASSIFICATION AND WAGE RATE SCHEDULE FOR LINE CONSTRUCTION HAS BEEN DETERMINED FOR FORT HOOD AND THAT IN ALL INVITATIONS ISSUED SINCE AUGUST 1967 FOR CONSTRUCTION CONTRACTS REQUIRING ELECTRICAL DISTRIBUTION CONSTRUCTION THERE HAVE BEEN INCLUDED WRITTEN INSTRUCTIONS THAT THE LINE CONSTRUCTION SCHEDULES OF THE WAGE DECISIONS ARE APPLICABLE TO THE ELECTRICAL DISTRIBUTION CONSTRUCTION. CURRENTLY, CONTRACTS DACA63-71-C-0055 AND DACA63-71-C 0098 IN PROGRESS AT FORT HOOD CONTAIN SUCH INSTRUCTIONS, AND THE CONTRACTORS ARE EMPLOYING LINE CONSTRUCTION CLASSIFICATIONS FOR THE ELECTRICAL DISTRIBUTION CONSTRUCTION. FURTHER, THREE CONTRACTS FOR ELECTRICAL DISTRIBUTION CONSTRUCTION, WHICH HAVE BEEN ADMINISTERED WITHIN THE PAST TWO YEARS BY THE CONTRACTING OFFICER AT FORT HOOD, HAVE INCLUDED ONLY THE LINE CONSTRUCTION SCHEDULE FROM THE APPLICABLE WAGE DECISION.

IN ADDITION, THE CONTRACTING OFFICER REPORTS THAT IT IS THE PREVAILING PRACTICE AT FORT HOOD TO PERFORM EXTERIOR ELECTRICAL DISTRIBUTION CONSTRUCTION WITH THE CLASSIFICATIONS CONTAINED IN THE LINE CONSTRUCTION SCHEDULES OF THE WAGE DECISIONS ISSUED FOR FORT HOOD. WAGE DECISION NO. AK-19,065, IT IS STATED, IS CURRENT WITH THE AGREEMENT BETWEEN LOCAL UNION NO. 346 OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, ARLINGTON, TEXAS, AND SOUTHWESTERN LINE CONSTRUCTORS CHAPTER OF THE NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION, INC., CLAIMING JURISDICTION IN BELL AND CORYELL COUNTIES, TEXAS.

WITH REFERENCE TO THE BASIS FOR INCORPORATING IN THE IFB ONLY THE FOUR CLASSIFICATIONS INCLUDED IN THE LINE CONSTRUCTION SCHEDULE IN WAGE DECISION AK-19,065, THE CONTRACTING OFFICER MAKES THE FOLLOWING PERTINENT STATEMENTS:

"THE DICTIONARY OF OCCUPATIONAL TITLES, 1965, VOLUME 1, DEFINITIONS OF TITLES, THIRD EDITION, PUBLISHED BY THE DEPARTMENT OF LABOR, AND PREVIOUS EDITIONS, LIST DUTIES OF GROUNDMEN TO BE THE SAME OR SIMILAR TO THE MENIAL TASKS DESCRIBED IN DELTA ELECTRIC COMPANY'S LETTER OF 23 JULY 1971. LINE EQUIPMENT TRUCKS FOR DIGGING HOLES AND SETTING POLES HAVE TRADITIONALLY BEEN THE WORK OF THE LINEMAN, OR EQUAL. IN THIS INVITATION THERE IS NO REQUIREMENT FOR GRADING, PAVING, STREET CROSSINGS, FENCING OR OTHER RELATED WORK CUSTOMARILY PERFORMED UNDER THE HEAVY-HIGHWAY SCHEDULE OF WAGE DECISIONS. THE ONLY CONCEIVABLE CARPENTRY WORK INVOLVED WOULD BE FOR THE PROJECT SIGN REQUIRED BY THE INVITATION. PROJECT SIGNS ARE NORMALLY CONSTRUCTED AND PAINTED BY AN OFF-SITE FIRM AND ERECTED AT THE PROJECT SITE. THE ONLY KNOWN REQUIREMENT FOR AN ASPHALT HEATER MAN OR AN ASPHALT RAKER WOULD BE TO SEAL AROUND 11 UTILITY POLES AFTER THEY ARE ERECTED IN PAVED AREAS.

"WE RECOGNIZE THE DISPARITY OF RATES IN THE FOUR SCHEDULES OF THE WAGE DECISION, NO. AK-19,065. THIS CONDITION IS PREVALENT FOR WAGE DECISIONS THROUGHOUT TEXAS, CREATING ADDED ENFORCEMENT RESPONSIBILITIES FOR CONTRACTING AGENCIES TO ASSURE APPLICABLE COMPLIANCE. WE AGREE THAT LABOR COSTS UNDER ANY TEXAS HEAVY-HIGHWAY SCHEDULE WOULD BE LESS THAN LABOR COSTS FOR IDENTICAL CONSTRUCTION UNDER THE LINE CONSTRUCTION SCHEDULE.

"ADDITIONAL CLASSIFICATIONS AND RATES (DD FORM 1565), A NORMAL ADMINISTRATIVE FUNCTION AFTER CONTRACT AWARD, WILL NOT BE APPROVED AT DISTRICT LEVEL FOR THIS CONTRACT UNLESS POSITIVE EVIDENCE OF A REQUIREMENT DEVELOPS AS THE CONTRACT PROGRESSES, I.E., (1) THE CONTRACTOR'S EQUIPMENT ACCIDENTALLY DAMAGES EXISTING PAVEMENT REQUIRING REPAIRS UNDER THE CONTRACT PROVISIONS, OR (2) CLASSIFICATIONS ARE REQUIRED TO CONSTRUCT, PAINT, AND ERECT A PROJECT SIGN IF THE CONTRACTOR DOES NOT ELECT TO PURCHASE THE SIGN FROM AN ESTABLISHED SOURCE. ANY REQUEST FOR ADDITIONAL CLASSIFICATIONS OTHER THAN FOR MINOR REQUIREMENTS AS MAY DEVELOP WILL BE FORWARDED TO THE SECRETARY OF LABOR IF AGREEMENT BETWEEN THE PARTIES CANNOT BE REACHED (EXHIBIT A, GP 24(D)). APPROVAL OF ANY CLASSIFICATION OR RATE NOT DETERMINED BY THE SECRETARY OF LABOR IS THE PROPER SUBJECT OF CONTRACT ADMINISTRATION AFTER AWARD, AND IS NOT CONSIDERED AS THE JUSTIFICATION TO DELAY AWARD OF THE CONTRACT." THE CONTRACTING OFFICER FURTHER REPORTS THAT ON JULY 20, 1971, A REPRESENTATIVE OF THE ASSOCIATED GENERAL CONTRACTORS, TEXAS HEAVY-HIGHWAY BRANCH, AUSTIN, TEXAS, QUESTIONED THE PROCURING ACTIVITY LABOR RELATIONS OFFICER REGARDING THE ABSENCE FROM IFB DACA63 72-B-0010 OF THE HEAVY AND HIGHWAY CLASSIFICATIONS, AND THAT HE WAS APPRISED OF THE IFB REQUIREMENTS FOR ONLY ELECTRICAL DISTRIBUTION WITH NO BUILDING OR HEAVY AND HIGHWAY SCHEDULES. OTHER THAN THE PROJECT SIGN, THE REPRESENTATIVE WAS UNABLE TO NAME ANY PORTION OF THE PROPOSED CONSTRUCTION WHICH HE CONSIDERED TO BE SUBJECT TO THE HEAVY AND HIGHWAY SCHEDULE.

THE OFFICE OF THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY, STATES THAT THE USE OF THE LINE CONSTRUCTION SCHEDULE FOR THE CONTRACT WORK, IN KEEPING WITH THE PREVAILING PRACTICE IN THE FORT HOOD AREA, IS IN ACCORD WITH 45 COMP. GEN. 532 (1966) AND ASPR 18-704.2(F). IN 45 COMP. GEN. 532, WE HAD FOR DECISION THE QUESTION OF WHICH OF TWO WAGE SCHEDULES (BUILDING CONSTRUCTION OR HEAVY AND HIGHWAY CONSTRUCTION) IN A GENERAL WAGE DETERMINATION ISSUED BY THE SOLICITOR OF LABOR WAS BINDING ON A CONTRACTOR. FOR VARIOUS REASONS THE CONTRACTOR MAINTAINED THAT THE BUILDING CONSTRUCTION SCHEDULE, WHICH CARRIED LOWER WAGE RATES THAN THE HEAVY AND HIGHWAY CONSTRUCTION SCHEDULE, WAS APPLICABLE TO THE CONTRACT WORK. THE CONTRACTING OFFICER PRESENTED EVIDENCE COVERING LOCAL WAGE PRACTICES AND SCHEDULES APPLIED TO SIMILAR CONTRACTS IN SUPPORT OF HIS POSITION THAT THE HEAVY AND HIGHWAY CONSTRUCTION SCHEDULE APPLIED. THE CONTRACT AND THE INVITATION PURSUANT TO WHICH IT WAS AWARDED GAVE NO INDICATION AS TO WHICH SCHEDULE APPLIED TO THE WORK. IN THE CIRCUMSTANCES OF THAT CASE, WE STATED THAT, WHILE WE AGREED WITH THE POSITION OF THE CONTRACTING OFFICER, THE CONTRACTOR, WHO HAD BASED ITS BID ON THE BUILDING CONSTRUCTION SCHEDULE WAGE RATES, SHOULD NOT BE HELD TO HAVE VIOLATED THE DAVIS-BACON ACT. HOWEVER, WE MADE THE FOLLOWING STATEMENTS AT PAGES 537 AND 538 OF THAT DECISION WHICH ARE APPLICABLE TO THE FORT HOOD PROCUREMENT:

"THE LEGISLATIVE HISTORY OF THE DAVIS-BACON ACT DISCLOSES THAT ITS PURPOSE IS TO PREVENT A GOVERNMENT CONSTRUCTION CONTRACTOR FROM IMPORTING OUTSIDE LABORERS INTO AN AREA AT LOWER WAGES THAN THOSE PREVAILING IN THE LOCALITY FOR SIMILAR WORK. TO THIS END THE ACT GIVES THE SECRETARY OF LABOR FINAL AUTHORITY TO DETERMINE THE WAGE RATES PREVAILING FOR THE WORK CONTEMPLATED. UNITED STATES V BINGHAMTON CONSTRUCTION CO., 347 U.S. 171 (1954). SUCH DETERMINATIONS NECESSARILY ARE BASED ON THE RATES OF WAGES FOUND TO BE PAID MECHANICS AND LABORERS ON PROJECTS OF A CHARACTER SIMILAR TO THE CONTRACT WORK. ***

"NEITHER THE DAVIS-BACON ACT NOR ANY REGULATIONS ISSUED THEREUNDER SET FORTH THE DIFFERENCE BETWEEN 'HEAVY AND HIGHWAY CONSTRUCTION' AND 'BUILDING CONSTRUCTIONS,' AND WHETHER A PARTICULAR PIECE OF CONSTRUCTION FALLS UNDER ONE OR THE OTHER IS TO BE DETERMINED BY THE LEVEL OF WAGES PAID ON SIMILAR PROJECTS IN THE AREA, WITH THE INITIAL DECISION ON THAT POINT BEING MADE BY THE CONTRACTING AGENCY. UNDER THE CIRCUMSTANCES, IT IS OUR VIEW THAT WHERE, AS HERE, AN IFB REQUESTS QUOTATIONS ON A PROJECT WHICH CALLS FOR A WAGE SCHEDULE APPLICABLE TO ONLY ONE PARTICULAR TYPE OF CONSTRUCTION, IT IS INCUMBENT UPON THE CONTRACTING OFFICER TO PREPARE HIS REQUEST TO THE SECRETARY OF LABOR FOR A DETERMINATION OF WAGE RATES IN SUCH A MANNER THAT THE WAGE RATE DETERMINATION AS ISSUED RELATES ONLY TO THE CONSTRUCTION IN QUESTION, OR WHERE SUCH A PROCEDURE IS NOT PRACTICABLE, AS WHERE A GENERAL WAGE DETERMINATION IS USED WHICH CONTAINS MORE THAN ONE SCHEDULE OF WAGE RATES, TO UNEQUIVOCABLY INDICATE IN THE IFB WHICH PARTICULAR WAGE SCHEDULE IS CONSIDERED APPLICABLE TO THE CONTRACT WORK."

FOLLOWING THE ISSUANCE OF OUR DECISION, THE DEPARTMENT OF LABOR ISSUED ALL AGENCY MEMORANDUM #68, DATED JULY 19, 1966, A COPY OF WHICH THAT DEPARTMENT HAS FURNISHED TO YOU, SETTING FORTH GUIDELINES FOR CONTRACTS TO WHICH A WAGE DETERMINATION WITH MORE THAN ONE SCHEDULE OF RATES APPLIES. THESE GUIDELINES, WHICH THE PROCURING ACTIVITY FOLLOWED IN CONNECTION WITH THE ISSUANCE OF IFB DACA63-72-B-0010, ARE TO THE EFFECT THAT ONLY THE SCHEDULE OR INDIVIDUAL RATES APPLICABLE TO THE PARTICULAR CONTRACT WORK SHOULD BE MADE APPLICABLE BY THE TERMS OF THE PROCUREMENT SOLICITATION TO THE CONTRACT. FURTHER, IT IS SIGNIFICANT THAT THE MEMORANDUM GAVE RECOGNITION TO THE FACT THAT THE LOCAL CONTRACTING OFFICER IS IN THE BEST POSITION TO KNOW WHAT KIND OR KINDS OF CONSTRUCTION ACTIVITIES ARE INCLUDED IN ANY SPECIFIC CONTRACT TO BE AWARDED AND TO DETERMINE FROM CURRENT PRACTICES IN THE AREA WHICH SCHEDULES ARE APPLICABLE TO WHICH WORK.

THE RECORD INDICATES THAT FOR THE TYPE OF WORK CONTEMPLATED BY IFB DACA63 -72-B-0010 THE PREVAILING PRACTICE IN THE FORT HOOD AREA INVOLVED IS TO ABIDE BY LINE CONSTRUCTION WAGE RATES; THAT SIMILAR DEPARTMENT OF THE ARMY CONTRACTS IN THE FORT HOOD AREA HAVE APPLIED SUCH RATES WITHOUT OBJECTION BY THE CONTRACTORS; AND THAT NO EVIDENCE HAS BEEN OFFERED BY YOU, OR BY THE ASSOCIATED GENERAL CONTRACTORS, TO SUPPORT THE PREMISE THAT THE CONTRACT WORK IS NOT TO BE PERFORMED WITH THE CLASSIFICATIONS FURNISHED IN THE LINE CONSTRUCTION SCHEDULE OF THE WAGE DECISION, OR THAT THERE IS ANY SUBSTANTIAL PRACTICE IN THE AREA OF USING WORKERS OTHER THAN THOSE CLASSIFIED IN THE LINE CONSTRUCTION SCHEDULE TO PERFORM THE WORK IN QUESTION. SEE, IN THIS CONNECTION, OUR DECISION OF JULY 20, 1971, B- 160778, 51 COMP. GEN. , COPY ENCLOSED, IN WHICH WE CONCLUDE THAT SUCH BURDEN OF PROOF IS ON THE ONE WHO QUESTIONS THE CLASSIFICATIONS OF THE INVOLVED WORKERS.

IN THE CIRCUMSTANCES WE ARE UNABLE TO CONCLUDE THAT USE OF THE LINE CONSTRUCTION SCHEDULE IS NOT IN ACCORD WITH THE PURPOSE OF THE DAVIS BACON ACT. ACCORDINGLY, AND SINCE THE PROPOSED CONTRACT PROVIDES FOR USE OF OTHER CLASSIFICATIONS IF EMPLOYEES WHO CAN PROPERLY BE OTHERWISE CLASSIFIED ARE IN FACT USED IN PERFORMANCE OF THE WORK AFTER THE PROJECT IS UNDERWAY, WE ARE UNABLE TO CONCUR WITH YOUR POSITION THAT THE IFB IS DEFICIENT IN THIS REGARD.

FOR THE REASONS STATED WE SEE NO LEGAL BASIS FOR OBJECTION TO AWARD OF A CONTRACT UNDER THE IFB TO THAT RESPONSIBLE BIDDER WHO HAS SUBMITTED THE LOWEST RESPONSIVE BID, AND YOUR PROTEST IS ACCORDINGLY DENIED.