B-189535 August 3, 1974

B-189535: Aug 3, 1974

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Was referred to this Office by the Air Force under cover letter of June 27. 1977. Brockman claim is based on the underpayment of wages by the above firm In violation of the Davis-Bacon Act. We have held that the Government cannot withhold from contractor sums due under one contract to satisfy claims of under-contract for work in connection with the performance of a different. The basis for this conclusion is the holding in Whitney Brothers Plumbing and Heating Inc. v. Brockman worked were not discovered by the until after the money owing under those contracts was disbursed. While funds were withheld from menses owed the contractor contract. We have no legal authority to satisfy Mr. Brockman's claim from those funds since they were withheld from sums due the contractor under a contract other than the contracts under which Mr.

B-189535 August 3, 1974

The Honorable Edward Zorinsky United States Senate

Dear Senator Zorinsky

The matter of a claim by Mr. Richard E. Brockman for wages believed to be due from Nebraska-Iowa General Contractors, Inc., was referred to this Office by the Air Force under cover letter of June 27. 1977.

Mr. Brockman claim is based on the underpayment of wages by the above firm In violation of the Davis-Bacon Act, 40 U.S.C. Sec. 276a (1970), and the Contract Work Hours and Safety Standards Act, 40 U.S.C. Sec. 327, et seq. (1970). Both of these Acts provide that an amount sufficient to cover wage underpayments may be withheld from monies owed the contractor under the contract.

However, we have held that the Government cannot withhold from contractor sums due under one contract to satisfy claims of under-contract for work in connection with the performance of a different, by the same contractor. The basis for this conclusion is the holding in Whitney Brothers Plumbing and Heating Inc. v. United States 224 F. Supp. 860 (1963), to the effect that the Davis-Bacon Act does not authorize the payment of underpaid workers from funds withheld from contracts other than those under which the underpayments found. Also, see 48 Comp. Gen. and B-170784, February 17, 1971 (copies enclosed), which apply the same principle to the Contract Work Hours and Safety Standards Act.

Unfortunately, in the present case, the violations under the contracts on which Hr. Brockman worked were not discovered by the until after the money owing under those contracts was disbursed. While funds were withheld from menses owed the contractor contract, we have no legal authority to satisfy Mr. Brockman's claim from those funds since they were withheld from sums due the contractor under a contract other than the contracts under which Mr. Brockman was underpaid, and the contractor has not assented to the use of these funds to satisfy Mr. Brockman's claim.

Sincerely yours,

R. F. Keller Deputy Comptroller General of the United States