B-217848, NOV 14, 1985

B-217848: Nov 14, 1985

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AFTER NEW CLASSIFICATION WAS APPROVED BY CONTRACTING OFFICER. NOTICE OF THIS NEW CLASSIFICATION WAS FORWARDED FOR INFORMATIONAL PURPOSES TO DEPARTMENT OF LABOR (DOL). CLASSIFICATION WAS DISAPPROVED BY DOL. CONTRACTOR'S USE OF CLASSIFICATION WAS PROPER. THERE WERE NO VIOLATIONS OF DAVIS-BACON ACT. RETURNED HEREWITH ARE YOUR FILES Z-2818451(0) AND (1). " WAS COMPLETED BY PRIME ROOFING. THE BOARD ACCEPTED JURISDICTION UNDER THE "DISPUTES CONCERNING LABOR STANDARDS" CLAUSE OF THE CONTRACT STATING THAT THE ISSUE WAS WHETHER THE CONTRACT PROVISIONS AND REGULATIONS GOVERNING APPROVAL OF ADDITIONAL WAGE CLASSIFICATIONS WERE FOLLOWED BY THE GOVERNMENT. THE APPEAL WAS DISMISSED. RENDERED UNDER THE "DISPUTES" CLAUSE IS NOT SUBJECT TO FURTHER ADMINISTRATIVE REVIEW.

B-217848, NOV 14, 1985

CONTRACTS - LABOR STIPULATIONS - DAVIS-BACON ACT - CLASSIFICATION OF WORKMEN - DISPUTES DIGEST: CONTRACTOR, ON PROJECT COVERED BY DAVIS-BACON ACT, REQUESTED CREATION OF NEW WAGE CLASSIFICATION AND RATE FOR USE ON PROJECT. IN ACCORDANCE WITH THEN EXISTING REGULATIONS, AFTER NEW CLASSIFICATION WAS APPROVED BY CONTRACTING OFFICER, NOTICE OF THIS NEW CLASSIFICATION WAS FORWARDED FOR INFORMATIONAL PURPOSES TO DEPARTMENT OF LABOR (DOL). CLASSIFICATION WAS DISAPPROVED BY DOL, AND CONTRACTOR APPEALED UNSUCCESSFULLY WITHIN DOL. CONTRACTOR THEN APPEALED TO BOARD OF CONTRACT APPEALS (BCA) WHICH TOOK JURISDICTION UNDER "DISPUTES CONCERNING LABOR STANDARDS" CLAUSE OF CONTRACT. DECISION OF BCA HELD THAT DOL, UNDER THEN EXISTING REGULATIONS, COULD NOT OVERRULE CONTRACTING OFFICER'S DECISION ON NEW CLASSIFICATION. UNDER S&E CONTRACTORS, INC. V. UNITED STATES, 406 U.S. 1 (1972), GAO MAY NOT REVIEW FINAL BCA DECISIONS RENDERED UNDER "DISPUTES" CLAUSE. THEREFORE, CONTRACTOR'S USE OF CLASSIFICATION WAS PROPER, THERE WERE NO VIOLATIONS OF DAVIS-BACON ACT, AND FUNDS WITHHELD SHOULD BE RETURNED TO CONTRACTING OFFICER.

GROUP DIRECTOR, GGD - CLAIMS GROUP:

PRIME ROOFING, INC. (A DAVIS-BACON ACT CASE) - B-217848 O/M.

RETURNED HEREWITH ARE YOUR FILES Z-2818451(0) AND (1). THE EVIDENCE IN THE RECORD BEFORE US SHOWS THAT PRIME ROOFING, INC., CLASSIFIED CERTAIN OF ITS EMPLOYEES AS "ROOFER'S HELPERS" AND PAID THEM AT A RATE LOWER THAN THE JOURNEYMAN RATE SET OUT IN THE WAGE DETERMINATIONS APPLICABLE TO CONTRACTS NO. FO4699-78-C0215 AND NO. FO4626-78-C0054. IN EACH CASE, A "REQUEST FOR AUTHORIZATION OF ADDITIONAL CLASSIFICATION," WAS COMPLETED BY PRIME ROOFING, INC., AND SENT TO THE CONTRACTING OFFICERS REQUESTING A NEW CLASSIFICATION AND WAGE RATE FOR THE "ROOFER'S HELPERS." THE CONTRACTING OFFICERS APPROVED THE REQUEST IN EACH CASE AND FORWARDED IT TO THE DEPARTMENT OF LABOR ACCORDING TO THE REGULATIONS. DEFENSE ACQUISITION REGULATIONS SEC. 18-704.4(B). IN RESPONSE, THE DIRECTOR, DIVISION OF CONSTRUCTION WAGE DETERMINATION, DEPARTMENT OF LABOR, DENIED THE REQUEST FOR THE ADDITIONAL CLASSIFICATION. PRIME ROOFING, INC., IN BOTH CASES, REQUESTED THAT THE DEPARTMENT OF LABOR RECONSIDER ITS DENIAL. IN BOTH INSTANCES, THE DEPARTMENT OF LABOR AGAIN DISAPPROVED THE REQUEST FOR ADDITIONAL CLASSIFICATION.

PRIME ROOFING, INC., APPEALED THE GOVERNMENT'S WITHHOLDING OF FUNDS UNDER CONTRACT NO FO4699-78-C0215 TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS. THE BOARD ACCEPTED JURISDICTION UNDER THE "DISPUTES CONCERNING LABOR STANDARDS" CLAUSE OF THE CONTRACT STATING THAT THE ISSUE WAS WHETHER THE CONTRACT PROVISIONS AND REGULATIONS GOVERNING APPROVAL OF ADDITIONAL WAGE CLASSIFICATIONS WERE FOLLOWED BY THE GOVERNMENT. THE BOARD HELD THAT THE CONTRACTING OFFICER HAD THE AUTHORITY TO APPROVE THE ADDITIONAL CLASSIFICATION WITHOUT REVIEW BY THE DEPARTMENT OF LABOR. THE GOVERNMENT APPEALED THE BOARD DECISION TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT. ON AUGUST 24, 1984, ON THE GOVERNMENT'S MOTION, THE APPEAL WAS DISMISSED.

AS A RESULT OF S&E CONTRACTORS, INC. V. UNITED STATES, 406 U.S. 1 (1972), WE NO LONGER REVIEW BOARD OF CONTRACT APPEALS DECISIONS RENDERED UNDER THE "DISPUTES" CLAUSE. IN THAT CASE, THE UNITED STATES SUPREME COURT HELD THAT, ABSENT BAD FAITH OR FRAUD, A FINAL AGENCY SETTLEMENT OR DECISION, RENDERED UNDER THE "DISPUTES" CLAUSE IS NOT SUBJECT TO FURTHER ADMINISTRATIVE REVIEW. SEE, 52 COMP.GEN. 63 (1972); 52 COMP.GEN. 196 (1972). THE BOARD DECISION OF FEBRUARY 11, 1983, IS THE FINAL DECISION IN THE MATTER REGARDING CONTRACT NO. FO4699 78-C0215.

THE CONTRACTING OFFICER FOR CONTRACT NO. FO4626-78-C0054 INITIALLY APPROVED THE PRIME ROOFING, INC.'S, "REQUEST FOR ADDITIONAL CLASSIFICATION." SINCE THE BOARD HAS RULED THAT SUCH ACTION CANNOT BE REVERSED BY THE DEPARTMENT OF LABOR, PRIME ROOFING, INC., CORRECTLY COMPENSATED SOME EMPLOYEES IN ACCORDANCE WITH THE ROOFER'S HELPER CLASSIFICATION AND RATE AS ADDED TO THE CONTRACT WAGE DETERMINATION.

ACCORDINGLY, THE FUNDS ON DEPOSIT WITH YOUR OFFICE SHOULD BE RETURNED TO THE CONTRACTING OFFICERS AS EXPEDITIOUSLY AS POSSIBLE SINCE THE ADDITION OF THE NEW CLASSIFICATION AND RATE FOR "ROOFER'S HELPERS" RESULTS IN A FINDING THAT THERE WERE NO VIOLATIONS OF THE DAVIS-BACON ACT.