B-179871, APR 1, 1975

B-179871, APR 1, 1975

1. WHERE AGENCY PURSUANT TO DAVIS-BACON ACT, 40 U.S.C. SEC. 276A (1970), REQUIREMENTS, REQUESTS WAGE RATE DECISION FROM SECRETARY OF LABOR FOR WORK TO BE PERFORMED IN BREVARD COUNTY, FLORIDA, WHERE CAPE KENNEDY MISSILE COMPLEX, WHICH IS COVERED BY DIFFERENT WAGE RATE DECISION, IS LOCATED BUT FAILS TO APPRISE SECRETARY OF LABOR THAT PART OF WORK IS TO BE PERFORMED ON MISSILE COMPLEX PROPERTY, WAGE DECISION FOR WORK TO BE PERFORMED ON MISSILE COMPLEX PROPERTY MAY BE INCORPORATED INTO CONTRACT BY CHANGE ORDER SINCE, IN EFFECT, THERE WAS NO WAGE DECISION FOR WORK TO BE PERFORMED ON A MISSILE COMPLEX PROPERTY AS REQUIRED BY DAVIS-BACON ACT. 2. CORRECTNESS OF WAGE DECISION ISSUED FOR WORK TO BE PERFORMED ON CAPE KENNEDY MISSILE COMPLEX PROPERTY CANNOT BE REVIEWED BY THIS OFFICE SINCE COURTS HAVE HELD THAT CORRECTNESS OF PREVAILING WAGE DETERMINATION MADE BY SECRETARY OF LABOR IS NOT SUBJECT TO JUDICIAL REVIEW AND GAO HAS CONSTRUED THIS AS PRECLUDING REVIEW BY GAO.

HENDRY CORPORATION:

BY LETTER OF SEPTEMBER 19, 1974, AND SUPPLEMENTAL LETTER OF FEBRUARY 10, 1975, COUNSEL FOR THE HENDRY CORPORATION (HENDRY) REQUESTED THAT THIS OFFICE DECIDE A QUESTION OF LAW WHICH HAD BEEN RAISED IN CONNECTION WITH CONTRACT NO. DACW17-74-C-0034, DATED MARCH 12, 1974, AWARDED TO HENDRY BY THE JACKSONVILLE DISTRICT, CORPS OF ENGINEERS.

CONTRACT -0034 "DREDGING ACCESS CHANNEL AND TURNING BASIN, U.S. NAVY TRIDENT PROJECT, CANAVERAL HARBOR, FLORIDA" CALLS FOR THE DREDGING OF AN ACCESS CHANNEL AND TURNING BASIN TO DEPTH OF 41 FEET. IN ADDITION TO THE DREDGING, THE CONTRACT CALLS FOR DEMOLITION OF EXISTING STRUCTURES, CLEARING AND GRUBBING, ERECTION OF LEVEES AND SPOIL CONTAINMENT DIKES, PLACING OF RIP-RAP AND OTHER MISCELLANEOUS SHORE WORK. A PORTION OF THE SHORE WORK IN CONNECTION WITH SPOIL DISPOSAL AREAS CDA-A, CDA-C AND CDA-D IS TO BE PERFORMED AT A LOCATION NORTH OF THE CANAVERAL HARBOR ENTRANCE CHANNEL, WITHIN THE CAPE KENNEDY MISSILE COMPLEX PROPERTY. SIMILAR SHORE WORK IN CONNECTION WITH SPOIL DISPOSAL AREA CDA-B IS TO BE PERFORMED IN AN AREA SOUTH OF THE CANAVERAL HARBOR ENTRANCE CHANNEL, OUTSIDE THE CAPE KENNEDY MISSILE COMPLEX PROPERTY.

THE ABOVE CONTRACT CONTAINED THE USUAL DAVIS-BACON ACT, 40 U.S.C. SEC. 276A (1970) PROVISION REQUIRING THE CONTRACTOR TO PAY ITS WORKERS THE MINIMUM PREVAILING RATES FOR THAT AREA AS DETERMINED BY THE SECRETARY OF LABOR. PURSUANT TO THIS PROVISION, WAGE DECISION 73-FL-550, APPLICABLE "TO WORK OTHER THAN DREDGING," WAS INCLUDED IN THE CONTRACT. A SEPARATE WAGE DETERMINATION, NO. AQ-4067, APPLICABLE TO DREDGING, WAS ALSO INCLUDED BUT IS NOT INVOLVED IN THIS DISPUTE. WAGE DECISION 73-FL-550 IS APPLICABLE TO BREVARD COUNTY, FLORIDA, WHERE CANAVERAL HARBOR IS LOCATED, EXCEPT FOR CAPE KENNEDY, KENNEDY SPACE FLIGHT CENTER AND PATRICK AIR FORCE BASE.

BY LETTER OF MAY 22, 1974, THE BUSINESS AGENT FOR THE INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 673, POINTED OUT TO THE CORPS OF ENGINEERS THAT WAGE DETERMINATION 73-FL-550 WAS NOT THE PROPER WAGE DETERMINATION FOR THOSE AREAS WITHIN CAPE CANAVERAL (KENNEDY). THE CORPS OF ENGINEERS, BY LETTER OF JUNE 6, 1974, REQUESTED GUIDANCE FROM THE DEPARTMENT OF LABOR. IN ITS LETTER OF JUNE 18, 1974, THE DEPARTMENT OF LABOR ADVISED THE CORPS OF ENGINEERS THAT WAGE DECISION 73-FL-550, WHILE PROPER FOR WORK AT CANAVERAL HARBOR, WAS NOT PROPER FOR WORK PERFORMED ON THE MISSILE COMPLEX PROPERTY, CAPE CANAVERAL (KENNEDY) AND HAD THEY (THE DEPARTMENT OF LABOR) KNOWN AT THE TIME OF THE CORPS' REQUEST FOR A WAGE DETERMINATION (NOVEMBER 19, 1973) THAT PART OF THE WORK WAS TO BE PERFORMED ON THE MISSILE COMPLEX PROPERTY, WAGE RATES FOR CAPE CANAVERAL (KENNEDY) WOULD HAVE BEEN FURNISHED. ACCORDING TO THE DEPARTMENT OF LABOR THE PROPER WAGES FOR WORK PERFORMED ON THE MISSILE COMPLEX PROPERTY, CAPE CANAVERAL (KENNEDY) ARE THOSE CONTAINED IN WAGE DETERMINATION AQ-4056, AS MODIFIED.

PURSUANT TO THE ADVICE FROM THE DEPARTMENT OF LABOR, THE CONTRACTING OFFICER, ON JULY 22, 1974, ISSUED "CHANGE C" TO THE SUBJECT CONTRACT DIRECTING THAT WAGE DECISION NO. AQ-4056, AS MODIFIED, BE INCORPORATED INTO THE CONTRACT. IN HIS LETTER OF JULY 22 THE CONTRACTING OFFICER MADE IT CLEAR THAT WAGE DECISION NO. AQ-4056 APPLIED ONLY TO SHORE WORK PERFORMED ON THE CAPE KENNEDY, MISSILE COMPLEX PROPERTY WHILE WAGE DECISION 73-FL-550, WHICH WAS STILL PART OF THE CONTRACT, APPLIED TO WORK OUTSIDE THE CAPE KENNEDY MISSILE COMPLEX PROPERTY (SPOIL DISPOSAL AREA CDA -B). "CHANGE C" WAS MADE RETROACTIVE TO THE DATE OF AWARD OF THE CONTRACT.

BY LETTER OF AUGUST 16, 1974, HENDRY, THROUGH ITS ATTORNEYS, LODGED A PROTEST WITH THE CONTRACTING OFFICER REQUESTING THAT "CHANGE C" BE MODIFIED SO THAT WAGE DECISION AQ-4056 BE MADE TO APPLY ONLY TO DEMOLITION WORK TO BE PERFORMED WITHIN THE CAPE KENNEDY, MISSILE COMPLEX PROPERTY, SINCE THE WAGE RATES SET OUT IN WAGE DETERMINATION 73 FL-550 DID NOT INCLUDE RATES FOR DEMOLITION WORKERS, AND THAT FOR ANY OTHER KIND OF SHORE WORK, WHETHER WITHIN OR OUTSIDE OF THE CAPE KENNEDY MISSILE COMPLEX PROPERTY, WAGE DECISION NO. 73-FL-550 BE MADE TO APPLY.

THE CONTRACTING OFFICER, BY LETTER OF AUGUST 23, 1974, TO HENDRY, REAFFIRMED "CHANGE C" AND SUGGESTED THAT HENDRY'S PROTEST SHOULD PROPERLY BE DIRECTED TO THE WAGE APPEALS BOARD, DEPARTMENT OF LABOR. RATHER THAN FOLLOW THAT SUGGESTED COURSE OF ACTION, HENDRY, THROUGH ITS ATTORNEYS, REQUESTED A DECISION FROM THIS OFFICE IN REGARD TO THE MATTER.

THE INSTANT CASE PRESENTS NO FACTUAL DISPUTES, ONLY QUESTIONS OF LAW. IS HENDRY'S POSITION THAT DECISIONS RENDERED BY THIS OFFICE PRECLUDE CHANGES IN CONTRACTUAL WAGE RATES WHERE THE DEPARTMENT OF LABOR IS ATTEMPTING TO SUBSTITUTE IN MID-CONTRACT AND AFTER PERFORMANCE HAS BEGUN A NEW AND COMPLETELY DIFFERENT WAGE SCHEDULE, AS OPPOSED TO MERELY CORRECTING TYPOGRAPHIC OR CLERICAL ERRORS. ADDITIONALLY, HENDRY CONTENDS THAT EVEN HAD THERE BEEN NO WAGE DETERMINATION ISSUED, A CHANGE ORDER AT THIS LATE DATE, AFTER THE CONTRACTOR'S WAGE RATES HAVE BEEN FIXED AND SUBSTANTIAL WORK PERFORMED, WOULD NOT BE PROPER. HENDRY ALSO CONTENDS THAT "CHANGE C" IS UNLAWFUL BECAUSE WAGE DECISION NO. AQ 4056 WAS ISSUED IN DISREGARD OF STATUTORY REQUIREMENTS IN THAT IT (WAGE DECISION NO. AQ- 4056) WAS ISSUED FOR WORK PERFORMED ON "MISSILE COMPLEX PROPERTY" WITHOUT REGARD TO RATES ACTUALLY PREVAILING IN THE AREA.

THIS OFFICE HAS HELD THAT AFTER THE AWARD OF A CONTRACT THE DAVIS BACON ACT DOES NOT AUTHORIZE, EXCEPT IN THE CASE OF TYPOGRAPHICAL OR CLERICAL ERRORS, THE SUBSTITUTION OF A NEW WAGE DETERMINATION FOR, OR MODIFICATION OF AN EXISTING VALID WAGE DETERMINATION. 42 COMP. GEN. 410 (1963), 40 COMP. GEN. 557 (1961). ALSO SEE, 40 COMP. GEN. 48 (1960), 37 COMP. GEN. 326 (1957).

IN 42 COMP. GEN. 410 THE CONTRACT SPECIFIED HEAVY-HIGHWAY RATES FOR CONSTRUCTION OF MISSILE LAUNCHERS AND UNDERGROUND MISSILE STORAGE STRUCTURES. AFTER AWARD OF THE CONTRACT, CERTAIN LABOR ORGANIZATIONS COMPLAINED AND THE SECRETARY OF LABOR ISSUED A LETTER SUBSTITUTING HIGHER BUILDING CONSTRUCTION RATES FOR SUCH WORK. IN HOLDING THAT SUCH CHANGES WERE IMPROPER AND UNAUTHORIZED, THIS OFFICE COMMENTED AS FOLLOWS:

"IT SEEMS CLEAR THAT THE WAGE SCHEDULES ORIGINALLY FURNISHED BY THE DEPARTMENT OF LABOR AND INCORPORATED IN THE SPECIFICATIONS CORRECTLY STATED THE DETERMINATIONS ACTUALLY MADE BY IT AT THE TIME, AND THAT THE SO -CALLED INADVERTENCES REPRESENT A CHANGE OF JUDGMENT CONCERNING APPLICABLE CLASSIFICATIONS AND RATES. THE CONCLUSION EXPRESSED IN 37 COMP. GEN. 326, THAT A CORRECTION OF INADVERTENT ERRORS IN WAGE DETERMINATIONS WOULD BE CONSONANT WITH A PROPER OBSERVANCE OF THE STATUTORY DIRECTIONS OF THE DAVIS-BACON ACT, WAS NOT INTENDED TO APPROVE CHANGES OF ANY KIND IN THE WAGE SCHEDULES INCLUDED IN SPECIFICATIONS UPON WHICH CONTRACTS HAD BEEN AWARDED, EXCEPT AS NECESSARY TO CORRECT UNAVOIDABLE INACCURACIES RESULTING FROM MECHANICAL OR CLERICAL ERRORS. ***"

ALSO, IN 40 COMP. GEN. 557, INVOLVING A CONTRACT FOR THE CLEARING OF A RESERVOIR, WHERE THE SECRETARY OF LABOR SUBSEQUENTLY DETERMINED THAT THE RESERVOIR WORK WAS PART OF A LARGER DAM CONSTRUCTION PROJECT AND THAT HIGHER DAM CONSTRUCTION RATES SHOULD BE PAID, WE STATED THAT THE DAVIS- BACON ACT:

"*** NEITHER DIRECTS NOR AUTHORIZES ADJUSTMENT OF THE WAGE FLOOR DURING PERFORMANCE OF THE CONTRACT TO CONFORM TO CHANGES IN PREVAILING RATES; NO MATTER HOW LOW WAGES PAID BY OTHER EMPLOYERS IN THE AREA MAY GO, THE CONTRACTOR IS BOUND TO PAY ACCORDING TO THE CONTRACT; NO MATTER HOW MUCH HE MAY HAVE TO PAY IN EXCESS OF THE CONTRACTUAL MINIMUM, HE HAS NO RIGHT TO INCREASED COMPENSATION BY VIRTUE OF THE MINIMUM WAGE PROVISIONS. FAR AS THE FIXING OF THE WAGE FLOORS INCLUDED IN THE SPECIFICATIONS IS CONCERNED, THE STATUTORY FUNCTION OF THE SECRETARY OF LABOR IS EXHAUSTED ONCE HE HAS FURNISHED A PREVAILING WAGE DETERMINATION AND A CONTRACT HAS BEEN AWARDED CONTAINING A MINIMUM WAGE SCHEDULE BASED THEREON."

IT IS HENDRY'S POSITION THAT THE CIRCUMSTANCES IN THE PRESENT CASE ARE SUCH THAT THE DISPOSITION OF THIS CASE SHOULD BE GOVERNED BY THE ABOVE- MENTIONED LINE OF CASES.

HENDRY ALSO CITES TWO BOARD CASES, MATTER OF WILL ROGERS WORLD AIRPORT, WAB CASE NO. 65-4 (MARCH 22, 1966) AND DYER & DYER, INCORPORATED, ENG BCA NO. 3429, 74-1 BCA 10,636 WHICH HOLD, IN EFFECT, THAT A CHANGE ORDER CANNOT PROPERLY BE ISSUED TO CHANGE WAGE RATES SET OUT IN THE CONTRACT AT THE TIME OF AWARD NOTWITHSTANDING THE SUBSEQUENT ISSUANCE BY THE DEPARTMENT OF LABOR OF A LETTER OF INADVERTENCE. IN VIEW OF THE FACT THAT THESE DECISIONS CONCUR WITH THE HOLDINGS IN OUR DECISION IN THIS AREA, WE DO NOT BELIEVE THAT FURTHER DISCUSSION OF THE BOARD CASES IS WARRANTED.

WHILE THE ABOVE-MENTIONED DECISIONS INVOLVED ATTEMPTS, AFTER AWARD, TO MODIFY OR SUBSTITUTE A NEW WAGE DETERMINATION FOR A VALID EXISTING WAGE DETERMINATION, WE HAVE NOT YET DISCUSSED THOSE SITUATIONS WHERE THE ORIGINAL WAGE DETERMINATION IS NOT VALID OR ADEQUATE. AN EXAMPLE OF THIS TYPE OF SITUATION IS WHERE IT IS DISCOVERED AFTER AWARD THAT THE PROCURING ACTIVITY HAS GIVEN THE SECRETARY OF LABOR THE WRONG LOCATION AND THAT HIS WAGE DETERMINATION INCORPORATED INTO THE CONTRACT WAS BASED ON PREVAILING WAGES FOR THE WRONG AREA. THIS WAS THE SITUATION IN B-154443, JUNE 29, 1964, IN WHICH WE HELD:

"*** THUS, THE MINIMUM WAGE RATES INCLUDED IN THE CONTRACT ARE NOT, IN FACT, BASED ON A DETERMINATION RELEVANT TO THE PROJECT IN QUESTION. UNDER THESE CIRCUMSTANCES, SINCE MINIMUM WAGES PRESCRIBED BY THE CONTRACT ARE NOT IN FACT BASED ON A DETERMINATION BY THE SECRETARY OF LABOR OF WAGES PREVAILING IN THE AREA WHERE THE WORK IS TO BE PERFORMED, IT IS OBVIOUS THAT THE INTENDMENT OF THE DAVIS-BACON ACT HAS NOT BEEN SATISFIED.

"*** WE THEREFORE CONCLUDE THAT THE CORRECTED RATES SHOULD BE INCORPORATED IN THE SUBJECT CONTRACT EITHER BY SUPPLEMENTAL AGREEMENT OR BY CHANGE ORDER, WITH AN EQUITABLE ADJUSTMENT OF THE CONTRACT PRICE. ***"

ALSO, SEE B-159359, MAY 18, 1967; B-170501, APRIL 22, 1971.

IT IS THE POSITION OF THE CORPS OF ENGINEERS THAT THE PRESENT CASE DOES NOT INVOLVE THE MODIFICATION OF, OR THE SUBSTITUTION OF, A NEW WAGE DETERMINATION FOR A VALID EXISTING WAGE DETERMINATION, BUT RATHER IS A SITUATION WHERE THE ORIGINAL WAGE DETERMINATION WAS NOT APPLICABLE TO THE AREA WHERE THE WORK WAS TO BE PERFORMED AND, THUS, WOULD BE GOVERNED BY B- 154443, SUPRA, AND THE RELATED CASES CITED ABOVE.

AS PREVIOUSLY MENTIONED, WAGE DETERMINATION NO. 73-FL-550 LISTS THE HEAVY -HIGHWAY RATES PREVAILING IN BREVARD COUNTY, FLORIDA, EXCEPT FOR CAPE KENNEDY, KENNEDY SPACE FLIGHT CENTER AND PATRICK AIR FORCE BASE. THERE IS NO EVIDENCE OF RECORD TO INDICATE THAT WAGE DETERMINATION NO. 73-FL-550 EVER APPLIED TO THESE EXCEPTED AREAS. FOR THAT MATTER, THE EVIDENCE ESTABLISHES THAT THERE WAS A SEPARATE WAGE DETERMINATION FOR THESE AREAS. THUS, WHEN THE DEPARTMENT OF LABOR WAS REQUESTED TO FURNISH A WAGE DETERMINATION FOR BREVARD COUNTY IT FURNISHED NO. 73-FL 550 WHICH DID NOT APPLY TO CAPE KENNEDY. THEREFORE, IT CANNOT BE SAID THAT THE CIRCUMSTANCES OF THE PRESENT CASE ARE THE SAME AS IN THOSE CASES WHERE AFTER AWARD THE DEPARTMENT OF LABOR HAS SECOND THOUGHTS ABOUT A VALID WAGE DETERMINATION, E.G. WHERE IT CONCLUDES THAT BUILDING RATES ARE APPLICABLE RATHER THAN HEAVY-HIGHWAY RATES. THE LATTER SITUATION INVOLVES A CHANGE OF JUDGMENT, WHEREAS IN THE PRESENT CASE PRIOR TO AWARD NO VALID WAGE DETERMINATION HAD BEEN ISSUED FOR CAPE KENNEDY AND, THEREFORE, WHEN THE DEPARTMENT OF LABOR ISSUED WAGE DETERMINATION NO. AQ-4056, IT WAS MERELY TAKING REMEDIAL ACTION TO COMPLY WITH THE MANDATE OF THE DAVIS-BACON ACT THAT CONTRACTS COVERED BY THE ACT SHALL CONTAIN THE MINIMUM WAGE RATES "TO BE PAID VARIOUS CLASSES OF LABORERS AND MECHANICS WHICH SHALL BE BASED UPON THE WAGES THAT WILL BE DETERMINED BY THE SECRETARY OF LABOR TO BE PREVAILING FOR THE CORRESPONDING CLASSES OF LABORERS AND MECHANICS EMPLOYED ON PROJECTS OF A CHARACTER SIMILAR TO THE CONTRACT WORK IN THE CITY, TOWN, VILLAGE, OR OTHER CIVIL SUBDIVISION OF THE STATE, IN WHICH THE WORK IS TO BE PERFORMED, ***."

REGARDING HENDRY'S CONTENTION THAT EVEN HAD NO WAGE DETERMINATION BEEN ISSUED, A CHANGE ORDER AT THIS LATE DATE, AFTER THE CONTRACTOR'S WAGE RATES HAVE BEEN FIXED AND SUBSTANTIAL WORK PERFORMED, WOULD BE IMPROPER, HENDRY CITES 40 COMP. GEN. 565 (1961) AND B-159359, MAY 18, 1967, IN SUPPORT OF THIS CONTENTION. HOWEVER, WE BELIEVE THAT THESE CASES CAN BE DISTINGUISHED FROM THE PRESENT CASE. 40 COMP. GEN. 565 INVOLVED A SITUATION WHERE, UNLIKE THE PRESENT CASE, THE MINIMUM WAGE PROVISION OF THE DAVIS-BACON ACT WAS NOT INCLUDED IN THE CONTRACT. WE HELD IN THAT CASE THAT IF THE MINIMUM WAGE PROVISIONS OF THE ACT ARE NOT INCLUDED IN THE "ADVERTISED SPECIFICATIONS" OF THE CONTRACT, AS MANDATED BY THE ACT, THE CONTRACTOR IS NOT BOUND BY THESE PROVISIONS, REGARDLESS OF WHETHER THE PROJECT SHOULD OR SHOULD NOT HAVE BEEN COVERED BY THE ACT. WE GO ON TO STATE, IN EFFECT, THAT WHILE THE PUBLIC POLICY MANIFEST IN THE PROVISIONS OF THE ACT WARRANTS CANCELLATION AND READVERTISEMENT, IF FEASIBLE, OF WORK AWARDED WITHOUT INCLUDING PROVISIONS OF THE DAVIS-BACON ACT, NO CORRECTIVE ACTION WOULD APPEAR POSSIBLE WHERE SUBSTANTIAL WORK HAS BEEN PERFORMED OR BECAUSE OF OTHER PRACTICAL CONSIDERATIONS (SUCH AS THE 177 DIFFERENT WORK LOCATIONS INVOLVED IN B-159359, SUPRA). ALSO, SEE 44 COMP. GEN. 498 (1965). MOREOVER, WE DO NOT BELIEVE THE CIRCUMSTANCES IN THE PRESENT CASE CAN BE COMPARED WITH THE CIRCUMSTANCES IN B-159359, SUPRA, WHICH INVOLVED PAINTING AND CAULKING AT 177 DIFFERENT RADAR SITES. IN THAT CASE (B- 159359) NOT ONLY WAS THERE THE PROBLEM OF ISSUING SEPARATE WAGE RATE DECISIONS FOR EACH OF THE 177 SITES, BUT THE DEPARTMENT OF LABOR WAS PRECLUDED FROM ISSUING THE WAGE RATE DECISIONS, SINCE EACH WAGE DECISION WOULD IDENTIFY THE LOCATION OF THE RADAR INSTALLATION WHERE THE WORK WAS TO BE PERFORMED AND THIS WOULD HAVE AMOUNTED TO A SERIOUS SECURITY BREACH. ALSO, WE FOUND IN THAT CASE THAT THE REFERENCED SERVICES TO BE PERFORMED MADE MARGINAL AT BEST THE APPLICABILITY OF THE DAVIS-BACON ACT. PERHAPS IT WAS FOR THESE REASONS THAT INCORPORATION OF THE WAGE RATES BY MEANS OF A SUPPLEMENTAL AGREEMENT OR CHANGE ORDERS WAS NOT CONSIDERED. BUT IN ANY EVENT, NEITHER OF THESE FACTORS MENTIONED ABOVE ARE PRESENT IN THE INSTANT CASE. MOREOVER, WE DO NOT BELIEVE THE FACT THAT THERE HAS BEEN SUBSTANTIAL PERFORMANCE IN THE PRESENT CASE IS SUCH AN EXTENUATING FACTOR IN THE PRESENT CASE AS TO PRECLUDE INCORPORATION OF WAGE DETERMINATION AQ-4056 INTO HENDRY'S CONTRACT, SINCE THE CONTRACT DOES PROVIDE FOR AN EQUITABLE ADJUSTMENT IN THE CONTRACT PRICE FOR ANY INCREASED COSTS RESULTING FROM WAGE DETERMINATION AQ-4056.

FINALLY, WE CONSIDER HENDRY'S CONTENTION THAT "CHANGE C" IS UNLAWFUL BECAUSE WAGE DECISION NO. AQ-4056 WAS ISSUED IN DISREGARD OF STATUTORY REQUIREMENTS IN THAT THE DECISION WAS ISSUED FOR WORK PERFORMED ON "MISSILE COMPLEX PROPERTY" WITHOUT REGARD TO RATES ACTUALLY PREVAILING IN THE AREA. THE SUPREME COURT HAS HELD THAT THE CORRECTNESS OF PREVAILING WAGE DETERMINATIONS MADE BY THE SECRETARY OF LABOR IS NOT SUBJECT TO JUDICIAL REVIEW. UNITED STATES V. BINGHAMTON CONSTRUCTION CO., 347 U.S. 171 (1954). SEE ALSO FRAMLEA CORPORATION V. DEMBLING, 360 F. SUPP. 806 (1973). GAO CONSTRUES THESE DECISIONS AS PRECLUDING REVIEW BY THIS OFFICE. 53 COMP. GEN. 401 (1973).

FOR THE ABOVE REASONS, IT IS THE VIEW OF OUR OFFICE THAT THE ACTION TAKEN BY THE CONTRACTING OFFICER IN ISSUING "CHANGE C" WAS PROPER.