B-45076, NOVEMBER 14, 1944, 24 COMP. GEN. 376

B-45076: Nov 14, 1944

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THE EXECUTION OF A CONTRACT FOR LAUNDRY SERVICES NOT INCLUDING SUCH PROVISIONS AND STIPULATIONS WAS BEYOND THE SCOPE OF THE CONTRACTING OFFICER'S AUTHORITY. IS NOT SUFFICIENT TO EFFECT COMPLIANCE WITH THE EIGHT-HOUR LAW OF 1912. 1944: I HAVE YOUR LETTER OF OCTOBER 11. AS FOLLOWS: TRANSMITTED HEREWITH FOR ADVANCE DECISION IS PUBLIC VOUCHER IN FAVOR OF IDEAL-1WHITE SWAN LAUNDRY COMPANY. HEREWITH ARE SUPPORTING PAPERS INCLUDING THE PURCHASE ORDER AND THE CONTRACTOR'S BID DATED 20 MAY 1944. IT WILL BE NOTED THAT THE CONTRACTOR IN SUBMITTING ITS BID DELETED FROM THE INVITATION A PROVISION READING AS FOLLOWS: "OVERTIME COMPENSATION OF LABORERS AND MECHANICS. - IT IS UNDERSTOOD THAT THE CONTRACT IS SUBJECT TO THE PROVISIONS OF SECTION 303 OF THE SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT.

B-45076, NOVEMBER 14, 1944, 24 COMP. GEN. 376

CONTRACTS - LABOR STIPULATIONS - EIGHT-HOUR LAW IN THE ABSENCE OF CIRCUMSTANCES JUSTIFYING THE OMISSION OF THE PROVISIONS AND PENALTY STIPULATIONS OF THE EIGHT-HOUR LAW OF 1912, AS AMENDED OR QUALIFIED BY SECTION 303 OF THE ACT OF SEPTEMBER 9, 1940, RESPECTING THE EMPLOYMENT OF LABORERS AND MECHANICS IN EXCESS OF EIGHT HOURS PER DAY, THE EXECUTION OF A CONTRACT FOR LAUNDRY SERVICES NOT INCLUDING SUCH PROVISIONS AND STIPULATIONS WAS BEYOND THE SCOPE OF THE CONTRACTING OFFICER'S AUTHORITY, AND THE AGREEMENT SO EXECUTED IMPOSED NO OBLIGATION ON THE UNITED STATES TO PAY FOR SERVICES RENDERED THEREUNDER. THE INCLUSION IN A CONTRACT OF A PROVISION MAKING IT SUBJECT TO THE PROVISIONS OF SECTION 303 OF THE ACT OF SEPTEMBER 9, 1940, WITH RESPECT TO THE PAYMENT OF OVERTIME COMPENSATION TO LABORERS AND MECHANICS EMPLOYED IN EXCESS OF EIGHT HOURS PER DAY, IS NOT SUFFICIENT TO EFFECT COMPLIANCE WITH THE EIGHT-HOUR LAW OF 1912, AS AMENDED OR QUALIFIED BY SAID SECTION 303, REQUIRING THE INCLUSION IN GOVERNMENT CONTRACTS OF A PROVISION OBLIGATING THE CONTRACTOR NOT TO EMPLOY LABORERS AND MECHANICS IN EXCESS OF EIGHT HOURS PER DAY UNLESS OVERTIME COMPENSATION BE PAID, AND THE STIPULATION OF A PENALTY FOR VIOLATION OF SUCH OBLIGATION.

COMPTROLLER GENERAL WARREN TO CAPT. JNO. F. PEARCE, U.S. MARINE CORPS, NOVEMBER 14, 1944:

I HAVE YOUR LETTER OF OCTOBER 11, 1944, AS FOLLOWS:

TRANSMITTED HEREWITH FOR ADVANCE DECISION IS PUBLIC VOUCHER IN FAVOR OF IDEAL-1WHITE SWAN LAUNDRY COMPANY, CHARLESTON, SOUTH CAROLINA IN THE AMOUNT OF $147.04, REPRESENTING LAUNDRY SERVICE FURNISHED THE MARINE BARRACKS, NAVY YARD, CHARLESTON, SOUTH CAROLINA, DURING JULY 1944 PURSUANT TO NEGOTIATED PURCHASE ORDER DATED 29 MAY 1944 FOR FURNISHING SUCH SERVICES FOR THE FISCAL YEAR 1945. ALSO, HEREWITH ARE SUPPORTING PAPERS INCLUDING THE PURCHASE ORDER AND THE CONTRACTOR'S BID DATED 20 MAY 1944.

IT WILL BE NOTED THAT THE CONTRACTOR IN SUBMITTING ITS BID DELETED FROM THE INVITATION A PROVISION READING AS FOLLOWS:

"OVERTIME COMPENSATION OF LABORERS AND MECHANICS.--- IT IS UNDERSTOOD THAT THE CONTRACT IS SUBJECT TO THE PROVISIONS OF SECTION 303 OF THE SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941 ( PUBLIC ACT NO. 781, 76TH CONGRESS) APPROVED SEPTEMBER 9, 1940.'

ALTHOUGH THE BID WAS NOT RESPONSIVE TO THE INVITATION IN THAT SUCH PROVISION HAD BEEN DELETED, THE CONTRACT, IN THE FORM OF A PURCHASE ORDER, WAS AWARDED TO THE ABOVE-NAMED FIRM FOR THE REASON THAT IT WAS THE ONLY BID RECEIVED AND THE SERVICES URGENTLY WERE REQUIRED. THEREAFTER, THE CONTRACTOR WAS REQUESTED TO RE-EXECUTE THE INVITATION TO INCLUDE THE PROVISION IN ORDER THAT THE CONTRACT MIGHT BE REWRITTEN ON PROPER BASIS. THIS THE CONTRACTOR REFUSED TO DO.

THE ACT OF 19 JUNE 1912, 37 STAT. 137, 138, REQUIRED THAT EVERY CONTRACT TO WHICH THE UNITED STATES IS A PARTY AND WHICH INVOLVES EMPLOYMENT OF LABORERS AND MECHANICS SHALL CONTAIN A PROVISION THAT NO LABORER OR MECHANIC DOING ANY PART OF THE WORK SHALL BE REQUIRED OR PERMITTED TO WORK MORE THAN EIGHT HOURS PER DAY. IT APPEARS THAT WHILE THIS CONSTITUTES A MANDATORY DIRECTIVE TO CONTRACTING OFFICERS TO INCLUDE THE PROVISION IN CONTRACTS OF THE TYPE COVERED BY THE ACT, CREDIT FOR PAYMENTS WHERE THE PROVISION WAS OMITTED MAY BE ALLOWED BY THE GENERAL ACCOUNTING OFFICE UNDER CERTAIN CIRCUMSTANCES. SEE 17 COMP. GEN. 937, 18 ID. 646, 20 ID. 890, 21 ID. 1110, AND 22 ID. 400. ALSO, IT HAS BEEN HELD THAT CONTRACTS FOR LAUNDRY SERVICES COME WITHIN THE PURVIEW OF SAID ACT. 18 COMP. GEN. 337.

THE OPERATION OF THE CITED LEGISLATION WAS SUSPENDED AS TO ARMY, NAVY AND COAST GUARD CONTRACTS BY SECTION 5 (B) OF THE ACT OF 28 JUNE, 1940, 54 STAT. 676, 679. HOWEVER, SECTION 303 OF THE SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, APPROVED 9 SEPTEMBER 1940, 54 STAT. 872, 884, PROVIDED AS FOLLOWS:

"NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE WAGES OF EVERY LABORER AND MECHANIC EMPLOYED BY ANY CONTRACTOR OR SUBCONTRACTOR ENGAGED IN THE PERFORMANCE OF ANY CONTRACT OF THE CHARACTER SPECIFIED IN THE ACT OF JUNE 19, 1912 (37 STAT. 138, U.S.C., TITLE 40, SECS. 324, 325), SHALL BE COMPUTED ON A BASIC DAY RATE OF EIGHT HOURS PER DAY SHALL BE PERMITTED UPON COMPENSATION FOR ALL HOURS WORKED IN EXCESS OF EIGHT HOURS PER DAY AT NOT LESS THAN ONE AND ONE-HALF TIMES THE BASIC RATE OF PAY.'

IT WILL BE NOTED THAT SUCH ACT, IN AND OF ITSELF, DOES NOT PROVIDE A PENALTY FOR ITS VIOLATION, NOR DOES IT REQUIRE A CONTRACT PROVISION TO RENDER IT OPERATIVE. HOWEVER, IT APPARENTLY HAS BEEN CONSTRUED AS REINSTATING AND AMENDING THE 1912 ACT, SINCE IN 20 COMP. GEN. 890, 893, IT WAS HELD, IN PERTINENT PART AS FOLLOWS:

"* * * 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 THAT 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.'

WHILE THERE MAY BE SOME DOUBT AS TO WHETHER THE ACT OF 9 SEPTEMBER, 1940 REQUIRES THE INCLUSION OF A CONTRACT PROVISION, THE USUAL PRACTICE OF THE MARINE CORPS WITH RESPECT TO CONTRACTS SUCH AS THIS IS TO INCLUDE A PROVISION OF THE TYPE DELETED IN THIS CASE. ALTHOUGH SUCH PROVISION WAS OMITTED IN THIS CASE, YOUR APPROVAL OF THE CONTRACT AND OF PAYMENTS THEREUNDER ADMINISTRATIVELY IS DESIRED SINCE THE LAUNDRY SERVICES ARE NECESSARY AND ARE NOT POSSIBLE OF PROCUREMENT OTHERWISE. HOWEVER, IN VIEW OF THE FOREGOING, DOUBT EXISTS AS TO WHETHER PAYMENT MAY BE MADE WITHOUT YOUR PRIOR APPROVAL.

ACCORDINGLY, AND SINCE OTHER INVOICES WILL BE PRESENTED FOR PAYMENT UNDER THE SAME CONTRACT, AN EARLY DECISION IN THE PREMISES WOULD BE APPRECIATED.

"PLEASE RETURN THE ENCLOSURES WITH YOUR REPLY.'

IT HAS BEEN HELD THAT SECTION 303 OF THE SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941, 54 STAT. 884, 40 U.S.C. 325A, RENDERED INOPERATIVE THE PARTIAL SUSPENSION OF THE EIGHT-HOUR LAW OF 1912, 40 U.S.C. 324-326, PROVIDED FOR BY THE ACT OF JUNE 28, 1940, 54 STAT. 679. SEE 21 COMP. GEN. 1110, 1111; WALLING V. PATTON-TULLEY TRANSP. CO., 134 F.2D 945. ALSO, IT HAS BEEN HELD THAT SECTION 303 AUTHORIZED "THE EMPLOYMENT OF LABORERS AND MECHANICS IN EXCESS OF 8 HOURS PER DAY ON THE CONDITION, AND ONLY ON THE CONDITION, THAT TIME AND ONE-HALF BE PAID FOR ALL HOURS OF WORK IN EXCESS OF 8 HOURS PER DAY.' 20 COMP. GEN. 233, 235.

IT FOLLOWS THEN THAT, THE 8-HOUR LAW HAVING BEEN IN EFFECT, THE INSTANT CONTRACT WAS WITHIN ITS AMBIT AND SHOULD HAVE CONTAINED THE PROVISIONS REQUIRED THEREBY. AS STATED IN 18 COMP. GEN. 337, 340:

THE ACT IS IMPERATIVE AND, WITHIN ITS OWN LIMITATIONS, APPLIES TO EVERY CONTRACT OF WHATEVER KIND OR DESCRIPTION TO WHICH THE GOVERNMENT IS A PARTY OR WHICH IS MADE FOR OR ON BEHALF OF THE UNITED STATES WHICH MAY (NOT WILL) REQUIRE OR INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS TO DO "ANY PART OF THE WORK CONTEMPLATED BY THE CONTRACT.' THE ACT REPOSES NO DISCRETION IN THE HEADS OF DEPARTMENTS OR INDEPENDENT AGENCIES, OR CONTRACTING OFFICERS OR REPRESENTATIVES OF THE GOVERNMENT TO OMIT FROM ANY CONTRACT TO WHICH THE ACT IS OTHERWISE APPLICABLE REQUIREMENTS FOR COMPLIANCE WITH ITS PROVISIONS. "IF AFFIRMATIVE WORDS ARE ABSOLUTE, EXPLICIT, AND PREEMPTORY AND SHOW THAT NO DISCRETION IS INTENDED TO BE GIVEN, IT WILL BE HELD IMPERATIVE.' HENDERSON CASE, 4 CT.1CLS. 75, 83. THE RULE IS APPLICABLE HERE AND THE STATUTE MUST BE HELD TO BE "IMPERATIVE" AND APPLICABLE TO ALL CONTRACTS WITHIN ITS PURVIEW. * * *

SINCE, THEREFORE, THE CONTRACTING OFFICER HAD NO AUTHORITY TO EXECUTE THE CONTRACT WITHOUT THESE PROVISIONS THE AGREEMENT SO SIGNED IN VIOLATION OF THE STATUTE MUST BE HELD TO HAVE IMPOSED NO OBLIGATION ON THE UNITED STATES. SEE 18 COMP. GEN. 19; 20 COMP. GEN. 890, 894, AND AUTHORITIES THERE CITED.

THERE IS NOTED YOUR STATEMENT TO THE EFFECT THAT NO OTHER BID WAS RECEIVED AND THAT THE SERVICES WERE URGENTLY REQUIRED. BUT SUCH FACT DOES NOT WARRANT A DEPARTURE FROM THE PLAIN DUTY IMPOSED BY THE LAW. THE CONGRESS, IN THE ACT OF MARCH 4, 1917, 39 STAT. 1192, 40 U.S.C. 326, SPECIFICALLY PROVIDED THAT THE PRESIDENT IN CASE OF EMERGENCY COULD, ON CERTAIN CONDITIONS, RELAX THE STATUTORY REQUIREMENTS; BUT IT DID NOT GRANT SUCH EMERGENCY POWER TO ANY OTHER OFFICIALS OF THE GOVERNMENT.

THE DECISIONS CITED BY YOU IN WHICH, SO YOU STATE, CREDIT WAS ALLOWED FOR PAYMENT NOTWITHSTANDING THE FACT THAT CERTAIN STATUTORY PROVISIONS WERE OMITTED FROM THE CONTRACTS, ARE READILY DISTINGUISHABLE. IN 17 COMP. GEN. 937, 18 COMP. GEN. 646, 20 COMP. GEN. 890, AND 22 COMP. GEN. 400, THERE HAD BEEN A REAL QUESTION AS TO WHETHER OR NOT THE ACT APPLIED, OR AS TO WHETHER THE FACTS BROUGHT THE CONTRACT WITHIN THE STATUTORY EXCEPTIONS. IN 21 COMP. GEN. 1110, THE REQUISITE PROVISIONS OF THE ACT WERE NOT OMITTED. NONE OF THESE FACTORS ARE PRESENT HERE.

WITH FURTHER REFERENCE TO THE MATTER, YOUR ATTENTION IS INVITED TO DECISIONS DATED JUNE 16, 1943, AND JULY 15, 1944, B-33814, TO THE SECRETARY OF THE NAVY, WHEREIN IT WAS RULED THAT A CLAUSE IDENTICAL WITH THAT DELETED BY THE INSTANT CONTRACTOR COULD NOT BE REGARDED AS SUFFICIENT TO EFFECT COMPLIANCE WITH THE 8-HOUR LAW, SO THAT EVEN HAD THE DELETION NOT BEEN MADE, THE CONTRACT WOULD NOT HAVE BEEN PROPER. IN THE DECISION OF JUNE 16, 1943, IT WAS STATED:

THE ISSUE HERE PRESENTED IS WHETHER THE CONTRACT PROVISION INVOLVED- - THAT THE CONTRACT "IS SUBJECT TO THE PROVISIONS OF SECTION 303 OF THE SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1941 ( PUBLIC NO. 781, 76TH CONGRESS), APPROVED SEPTEMBER 9, 1940"--- PROPERLY MAY BE REGARDED AS SUFFICIENT TO EFFECT COMPLIANCE WITH THE MANDATORY REQUIREMENTS OF THE EIGHT-HOUR LAW, AS AMENDED. WHILE THE INCLUSION OF SAID PROVISION EVIDENTLY WAS INTENDED BY BOTH PARTIES TO THE CONTRACT AS A COMPLIANCE WITH THE REQUIREMENTS OF THE EIGHT-HOUR LAW, AS AMENDED, OR QUALIFIED BY SAID SECTION 303 OF THE ACT OF SEPTEMBER 9, 1940, AND PROBABLY WOULD BE SO CONSTRUED, IN VIEW OF THE POSSIBILITY THAT THE COURTS MIGHT HOLD THAT THE INCLUSION OF SUCH A PROVISION DOES NOT MEET THE REQUIREMENTS OF THE BASIC EIGHT-HOUR LAW AS AMENDED OR QUALIFIED AND, ACCORDINGLY, THAT THE CONTRACTOR IS NOT SUBJECT TO THE PENALTY PRESCRIBED THEREIN IN THE EVENT IF EMPLOYS ITS LABORERS AND MECHANICS IN EXCESS OF EIGHT HOURS PER DAY WITHOUT PAYING THE REQUIRED OVERTIME WAGES, I HAVE TO ADVISE THAT, IN SIMILAR CONTRACTS HEREAFTER ENTERED INTO BY THE NAVY DEPARTMENT, THERE SHOULD BE INCLUDED A PROVISION TO THE EFFECT THAT THE CONTRACT IS SUBJECT TO THE PROVISIONS AND PENALTY STIPULATION OF THE ACT OF JUNE 19, 1912, 37 STAT. 137, 138, AS AMENDED OR QUALIFIED BY SECTION 303 OF THE ACT OF SEPTEMBER 9, 1940, 54 STAT. 872, 884, AND THE PROPOSALS FOR SUCH CONTRACTS SHOULD SO INFORM THE BIDDERS.

ACCORDINGLY, YOU ARE ADVISED THAT PAYMENT ON THE VOUCHER IS NOT AUTHORIZED.