B-9557, MAY 9, 1940, 19 COMP. GEN. 917

B-9557: May 9, 1940

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" IS NOT APPLICABLE TO CONTRACTS FOR THE CONSTRUCTION. 1940: I HAVE YOUR LETTER OF APRIL 10. AS FOLLOWS: THE AUTHORITIES OF HOWARD UNIVERSITY ARE CONTEMPLATING ISSUING ADVERTISEMENTS FOR THE INSTALLATION OF CARD CATALOGUE CASES IN THE LIBRARY BUILDING. PAYMENT FOR WHICH WILL BE MADE FROM THE BALANCE OF NATIONAL INDUSTRIAL RECOVERY FUNDS REMAINING IN THE ALLOTMENT FOR THE PROJECT. IT IS PROPOSED TO ENTER INTO A CONTRACT ON U.S. THE WORK WILL INCLUDE THE MANUFACTURE OF THE CASES IN THE FACTORY OF THE ACCEPTED BIDDER AND SHIPMENT TO THE UNIVERSITY WHERE THE SERVICES OF CABINET MAKERS. HEAVY HAULING TRUCK DRIVERS AND TRUCK DRIVERS' HELPERS WILL BE REQUIRED TO MAKE THE INSTALLATION. IT IS EXPECTED THAT THE COST OF THE WORK WILL BE IN EXCESS OF $2.

B-9557, MAY 9, 1940, 19 COMP. GEN. 917

CONTRACTS - BACON-DAVIS ACT STIPULATIONS - APPLICABILITY TO HOWARD UNIVERSITY CONTRACTS THE BACON-DAVIS ACT, AS AMENDED, 49 STAT. 1011, REQUIRING THE INSERTION OF PROVISIONS RELATING TO MINIMUM WAGES, ETC., IN CERTAIN CONTRACTS "FOR CONSTRUCTION, ALTERATION, AND/OR REPAIR * * * OF PUBLIC BUILDINGS OR PUBLIC WORKS OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA," IS NOT APPLICABLE TO CONTRACTS FOR THE CONSTRUCTION, ALTERATION OR REPAIR OF BUILDINGS OR WORKS OF HOWARD UNIVERSITY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, MAY 9, 1940:

I HAVE YOUR LETTER OF APRIL 10, 1940, AS FOLLOWS:

THE AUTHORITIES OF HOWARD UNIVERSITY ARE CONTEMPLATING ISSUING ADVERTISEMENTS FOR THE INSTALLATION OF CARD CATALOGUE CASES IN THE LIBRARY BUILDING, PAYMENT FOR WHICH WILL BE MADE FROM THE BALANCE OF NATIONAL INDUSTRIAL RECOVERY FUNDS REMAINING IN THE ALLOTMENT FOR THE PROJECT.

IT IS PROPOSED TO ENTER INTO A CONTRACT ON U.S. GOVERNMENT FORM OF CONTRACT NO. P.W.A. 51 WITH THE LOWEST ACCEPTABLE BIDDER, SUCH CONTRACT TO BE SIGNED BY THE ASSISTANT SECRETARY OF THE DEPARTMENT AS CONTRACTING OFFICER IN BEHALF OF THE UNITED STATES.

THE WORK WILL INCLUDE THE MANUFACTURE OF THE CASES IN THE FACTORY OF THE ACCEPTED BIDDER AND SHIPMENT TO THE UNIVERSITY WHERE THE SERVICES OF CABINET MAKERS, WOOD FINISHERS, BUILDING LABORERS, HEAVY HAULING TRUCK DRIVERS AND TRUCK DRIVERS' HELPERS WILL BE REQUIRED TO MAKE THE INSTALLATION.

IT IS EXPECTED THAT THE COST OF THE WORK WILL BE IN EXCESS OF $2,000.00 AND THERE ARISES THE QUESTION, WHETHER OR NOT THE ACT OF CONGRESS APPROVED MARCH 3, 1931 (46 STAT. 1494), AS AMENDED BY THE ACT OF AUGUST 30, 1935 (49 STAT. 1012), COMMONLY KNOWN AS THE BACON-DAVIS ACT, AND REQUIRING THAT A PROVISION BE INSERTED IN CERTAIN CONTRACTS STATING THE MINIMUM WAGES TO BE PAID VARIOUS CLASSES OF LABORERS AND MECHANICS, IS APPLICABLE AS HOWARD UNIVERSITY IS A PRIVATE CORPORATION SUPPORTED IN PART BY GOVERNMENT FUNDS. THE QUESTION IS SUBMITTED TO YOU FOR DECISION. AS THE NEED FOR THE CATALOGUE CASES IS URGENT AN EARLY REPLY WOULD BE APPRECIATED.

THE BACON-DAVIS ACT, AS AMENDED, RELATES TO CONTRACTS IN EXCESS OF $2,000,"TO WHICH THE UNITED STATES OR THE DISTRICT OF COLUMBIA IS A PARTY, FOR CONSTRUCTION, ALTERATION, AND/OR REPAIR, INCLUDING PAINTING AND DECORATING, OF PUBLIC BUILDINGS OR PUBLIC WORKS OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA," WHICH REQUIRE OR INVOLVE THE EMPLOYMENT OF LABORERS AND/OR MECHANICS. UNDER THE CIRCUMSTANCES YOU RELATE THE ANSWER TO THE QUESTION PRESENTED IS DEPENDENT UPON WHETHER THE WORK TO BE PERFORMED CONSISTS OF THE "CONSTRUCTION, ALTERATION, AND/OR REPAIR * * * OF PUBLIC BUILDINGS OR PUBLIC WORKS OF THE UNITED STATES.'

IT HAS BEEN HELD REPEATEDLY THAT HOWARD UNIVERSITY IS NOT A BUREAU OR OFFICE OF THE DEPARTMENT OF THE INTERIOR. 11 COMP. DEC. 447; 12 ID. 412; 23 ID. 737; 2 COMP. GEN. 75; AND 12 ID. 113. ALTHOUGH THE UNIVERSITY WAS CREATED BY CONGRESSIONAL ENACTMENT (ACT OF MARCH 2, 1867, 14 STAT. 438) IT WAS CREATED AS A PRIVATE CORPORATION FOR EDUCATIONAL PURPOSES AND ITS CHARTER GAVE IT ALL THE RIGHTS AND POWERS USUALLY VESTED IN PRIVATE CORPORATIONS, INCLUDING THE RIGHT TO PURCHASE AND SELL REAL ESTATE; AND THE RIGHT TO CONTRACT AND TO SUE AND BE SUED.

WHILE THE UNITED STATES HAS FREQUENTLY AND GENEROUSLY CONTRIBUTED TO THE CONSTRUCTION, MAINTENANCE, AND DEVELOPMENT OF THE INSTITUTION THAT IS NOT ENOUGH TO CHANGE THE UNIVERSITY FROM A PRIVATE TO A PUBLIC INSTITUTION. AS SAID BY THE COURT IN THE CASE OF MAIATICO CONSTRUCTION COMPANY V. THE UNITED STATES, 79 F./2D) 418, 422:

* * * IF HOWARD UNIVERSITY WERE DISSOLVED BY CORPORATE AUTHORITY OR OTHERWISE, IT IS QUITE CLEAR THE UNITED STATES WOULD HAVE NO CLAIM OR TITLE OF ANY NATURE TO ANY OF ITS ASSETS; AND IT IS EQUALLY TRUE, OF COURSE, THAT THEY HAVE NO CLAIM OR TITLE OF ANY NATURE WHILE THE UNIVERSITY EXISTS AND FUNCTIONS.

THE MAIATICO CONSTRUCTION COMPANY CASE, SUPRA, INVOLVED A SUIT BY MATERIALMEN ON THE BOND OF A CONTRACTOR FURNISHED IN CONNECTION WITH A CONTRACT ENTERED INTO ON BEHALF OF THE UNITED STATES BY THE ASSISTANT SECRETARY OF THE INTERIOR FOR DORMITORY BUILDINGS AT HOWARD UNIVERSITY. THE SUIT WAS BROUGHT UNDER THE PROVISIONS OF THE HEARD ACT, 40 U.S.C. 270, RELATING TO BONDS GIVEN IN CONNECTION WITH CONTRACTS OF THE UNITED STATES "FOR THE CONSTRUCTION OF ANY PUBLIC BUILDING, OR THE PROSECUTION AND COMPLETION OF ANY PUBLIC WORK" OR FOR REPAIRS THERETO. THE COURT DENIED THE MATERIALMEN THE RIGHT TO RECOVERY UNDER THE BOND ON THE GROUND THAT THE BOND WAS NOT REQUIRED BY THE HEARD ACT BECAUSE THE BUILDINGS WERE NOT PUBLIC BUILDINGS OR PUBLIC WORKS OF THE UNITED STATES. SPECIFICALLY, THE COURT HELD AS FOLLOWS:

NUMEROUS OTHER CASES TO THE SAME EFFECT CAN BE CITED AND, SO FAR AS OUR EXAMINATION HAS GONE, THERE ARE NONE TO THE CONTRARY; AND SO WE REACH THE CONCLUSION THAT HOWARD UNIVERSITY IS A PRIVATE INSTITUTION;

THAT ITS RIGHT AND TITLE TO ITS BUILDINGS IS NOT AFFECTED BY THE FACT THAT MANY OF THEM MAY BE THE RESULT OF THE GENEROSITY OF THE NATIONAL GOVERNMENT;

THAT ITS RIGHTS AND POWERS AND LIABILITIES ARE FIXED BY ITS CHARTER AND THE LAWS IN RELATION TO PRIVATE CORPORATIONS;

THAT THE BUILDINGS INVOLVED IN THIS CONTROVERSY ARE NEITHER PUBLIC BUILDINGS NOR PUBLIC WORKS, AND THAT THE BONDS SUED ON WERE--- ON VIEW OF THESE SEVERAL CONCLUSIONS--- NOT WITHIN THE PROVISIONS OR CONTEMPLATION OF THE HEARD ACT.

THUS, UNDER THE HEARD ACT, THE TERMS "PUBLIC BUILDING" AND "PUBLIC WORK" HAVE BEEN HELD NOT TO COMPREHEND BUILDINGS OF HOWARD UNIVERSITY. IT IS NOTED THAT THE BACON-DAVIS ACT, AS AMENDED, USES THE TERMS IN THE PLURAL, I.E., "PUBLIC BUILDINGS" AND "PUBLIC WORKS," AND THOSE TERMS DO NOT APPEAR EVER TO HAVE BEEN JUDICIALLY DEFINED WITH RESPECT TO THAT ACT. HOWEVER, IN VIEW OF THE HOLDING OF THE COURT IN THE MAIATICO CONSTRUCTION COMPANY CASE, SUPRA, AND BEARING IN MIND THE PURPOSES OF THE HEARD ACT AND THE FACT THAT IT HAS BEEN LIBERALLY CONSTRUED BY THE COURTS ( HILL V. SURETY CO., 200 U.S. 197, 203) THERE WOULD APPEAR NO LEGAL BASIS FOR DISTINGUISHING THE TERMS "PUBLIC BUILDINGS" AND "PUBLIC WORKS" AS USED IN THE BACON-DAVIS ACT, FROM THE TERMS "PUBLIC BUILDING" AND "PUBLIC WORK" AS USED IN THE HEARD ACT, TO THE EXTENT OF MAKING THE BACON-DAVIS ACT APPLICABLE TO CONTRACTS FOR THE CONSTRUCTION, ALTERATION, OR REPAIR OF BUILDINGS OR WORKS OF HOWARD UNIVERSITY.

IN VIEW OF THE FOREGOING, THE REQUIREMENTS OF THE BACON-DAVIS ACT, AS AMENDED, SHOULD NOT BE INCLUDED IN THE CONTRACT IN QUESTION. YOUR SUBMISSION IS ANSWERED ACCORDINGLY.