Request for Reconsideration of Applicability of Davis-Bacon Act

A company requested reconsideration of a prior decision which declined to consider the issue of whether the Davis-Bacon Act was applicable to certain work performed by the company. The basis for the refusal to consider the matter was that the applicability of the Act was an issue which the Court of Claims would likely dispose of in its decision in a civil action brought by the protester to recover liquidated damages assessed by the Department of the Army. Meanwhile, in another decision on the same matter, the court dismissed the Government's counterclaim for a judgment in the full amount of the Act underpayments. The protester argued that, since the court dismissed the Government's counterclaim, the court would not dispose of the issue of the applicability of the Act. Therefore, the protester concluded that GAO should now consider the issue. However, the reason the court did not dispose of the issue was because it lacked jurisidiction to issue declaratory judgments. This did not mean that the court could not nor would not rule on the applicability of the Davis-Bacon Act when it renders its decision concerning the remission of liquidated damages, which were assessed because the overtime paid pursuant to the Contract Work Hours and Safety Standards Act was insufficient since it was based on a lower basic rate of pay than required by the Davis-Bacon Act. Accordingly, GAO declined to consider the matter, and the prior decision was affirmed.