B-129205, SEP. 5, 1957

B-129205: Sep 5, 1957

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TO THE SECRETARY OF THE INTERIOR: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 17. AFTER THE EXECUTION OF A CONTRACT IN WHICH SUCH SCHEDULE WAS INCORPORATED PURSUANT TO THE PROVISIONS OF THE DAVIS- BACON ACT. AT THE TIME A CONTRACT IS ENTERED INTO. UNDER THE ASSUMPTION THAT SUCH ACTION WAS NECESSARY BECAUSE OF THE LATTER OF INADVERTENCE FROM THE DEPARTMENT OF LABOR. WHILE WE WERE OF THE OPINION THAT SUCH ACTION BY THE CONTRACTING OFFICER WAS NOT REQUIRED. WOULD NORMALLY HAVE DISALLOWED THE CLAIM ON THE GROUND THAT THE CONTRACTING OFFICER'S ACTION WAS UNAUTHORIZED. IN THIS CONNECTION IT IS WORTHY OF NOTE THAT WHEN CONSIDERING S. 3847. IS NOT MAINTAINED IF THE RATES OF WAGES ARE TO BE SUBJECTED TO CHANGES BY CORRECTION OF INADVERTENT ERRORS IN THE SCHEDULE OF WAGES INCORPORATED INTO THE CONTRACT.

B-129205, SEP. 5, 1957

TO THE SECRETARY OF THE INTERIOR:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 17, 1957, INQUIRING AS TO WHETHER, IN THE LIGHT OF OUR DECISION TO YOU OF OCTOBER 30, 1956, B- 129205, 36 COMP. GEN. 341, CONTRACTING OFFICERS MAY CONTINUE TO REQUIRE CONTRACTORS TO PAY INCREASED MINIMUM WAGES ON THE BASIS OF LETTERS FROM THE SECRETARY OF LABOR ADVISING OF INADVERTENT ERRORS IN THE SCHEDULES OF LABOR CLASSIFICATIONS AND WAGE RATES DETERMINED BY THE SECRETARY AND INCORPORATED INTO CONTRACTS PURSUANT TO THE PROVISION OF THE DAVIS-BACON ACT, AS AMENDED, 40 U.S.C. 276A.

THE DECISION OF OCTOBER 30, 1956, HELD THAT A CORRECTION BY THE SECRETARY OF LABOR OF A WAGE SCHEDULE, AFTER THE EXECUTION OF A CONTRACT IN WHICH SUCH SCHEDULE WAS INCORPORATED PURSUANT TO THE PROVISIONS OF THE DAVIS- BACON ACT, DOES NOT, PER SE, EFFECT A CHANGE IN THE TERMS OF THE CONTRACT, AND THAT REFORMATION OF THE CONTRACT WOULD NOT BE AN APPROPRIATE REMEDY SINCE THE WAGE SCHEDULE INCLUDED IN THE CONTRACT THERE UNDER CONSIDERATION REPRESENTED THE TRUE INTENT OF THE CONTRACTING PARTIES. WE ALSO POINTED OUT THAT THE DAVIS-BACON ACT CONTEMPLATED MAKING DEFINITE AND CERTAIN, AT THE TIME A CONTRACT IS ENTERED INTO, THE CONTRACT PRICE AND THE MINIMUM WAGES TO BE PAID DURING THE PERFORMANCE OF THE CONTRACT.

IN THAT CASE YOU HAD ADVISED US THAT THE CONTRACTING OFFICER HAD REQUIRED THE CONTRACTOR TO INCREASE THE MINIMUM WAGES PAID TO CARPENTERS, BOTH PROSPECTIVELY AND RETROSPECTIVELY, UNDER THE ASSUMPTION THAT SUCH ACTION WAS NECESSARY BECAUSE OF THE LATTER OF INADVERTENCE FROM THE DEPARTMENT OF LABOR. WHILE WE WERE OF THE OPINION THAT SUCH ACTION BY THE CONTRACTING OFFICER WAS NOT REQUIRED, AND WOULD NORMALLY HAVE DISALLOWED THE CLAIM ON THE GROUND THAT THE CONTRACTING OFFICER'S ACTION WAS UNAUTHORIZED, WE DID NOT INTERPOSE ANY OBJECTION TO A CHANGE IN THE CONTRACT PRICE TO COMPENSATE THE CONTRACTOR IN THAT INSTANCE BECAUSE OF THE ABSENCE OF A PRIOR DECISION IN THE MATTER CLEARLY PRECLUDING THE CONTRACTING OFFICER'S CONCLUSION THAT THE "APPROPRIATE ACTION" REQUESTED BY THE SECRETARY OF LABOR NECESSITATED THE INCREASED COSTS TO THE CONTRACTOR WHICH RESULTED. ALSO, SEE A. J. PARETTA CONTRACTING COMPANY, INC. V. UNITED STATES, 109 C.CLS. 324, 351. WE DID NOT, HOWEVER, INTEND TO INDICATE ANY INTENTION TO ACQUIESCE IN SUCH CORRECTIONS IN FUTURE INSTANCES.

IN THIS CONNECTION IT IS WORTHY OF NOTE THAT WHEN CONSIDERING S. 3847, 72D CONGRESS (A FORERUNNER TO S. 3303, WHICH BECAME THE 1935 AMENDMENT TO THE ACT, PUBLIC LAW 403, 74TH CONGRESS, 49 STAT. 1011) REQUIRING THE INCLUSION IN THE ADVERTISED CONTRACT SPECIFICATIONS OF A SCHEDULE OF MINIMUM WAGES BASED UPON A DETERMINATION OF PREVAILING WAGES BY THE SECRETARY OF LABOR, THE CONGRESS REJECTED THE INCLUSION THEREIN OF A PROVISION FOR CHANGES IN WAGE RATES DURING THE PERIOD OF A CONTRACT, WITH CORRESPONDING INCREASES OR DECREASES IN THE CONTRACT PRICE. SEE 75 CONGRESSIONAL RECORD, PART 11, PAGES 12374-12387. THE DEFINITENESS OF THE CONTRACT OBLIGATIONS WITH RESPECT TO THE MINIMUM WAGES PAYABLE UNDER A CONTRACT, AS CLEARLY INTENDED BY CONGRESS, IS NOT MAINTAINED IF THE RATES OF WAGES ARE TO BE SUBJECTED TO CHANGES BY CORRECTION OF INADVERTENT ERRORS IN THE SCHEDULE OF WAGES INCORPORATED INTO THE CONTRACT.

Oct 1, 2020

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