B-190004, SEPTEMBER 28, 1977

B-190004, SEPTEMBER 28, 1977

REFUSAL BY DEPARTMENT OF LABOR TO ADD CLASSIFICATION OF "PLUMBER OR FITTERS HELPER" TO WAGE DETERMINATION WILL NOT BE REVIEWED BY GAO SINCE COURTS HAVE HELD THAT CORRECTNESS OF WAGE DETERMINATION IS NOT SUBJECT TO JUDICIAL REVIEW. GAO HAS INTERPRETED THESE DECISIONS AS PRECLUDING REVIEW BY GAO.

UNIVERSITY MECHANICAL & ENGINEERING CONTRACTORS, INC.:

BY LETTER OF SEPTEMBER 7, 1977, WITH ENCLOSURES, COUNSEL FOR UNIVERSITY MECHANICAL & ENGINEERING CONTRACTORS, INC. (UMEC), REQUESTED OUR OFFICE, IN EFFECT, TO OVERRULE A DECISION BY THE DEPARTMENT OF LABOR (DOL) NOT TO INCLUDE CERTAIN CLASSIFICATIONS OF WORKERS IN ITS WAGE DETERMINATION FOR PROJECT NO. C-06-1121-020-04, TAHOE-TRUCKEE SANITATION AGENCY.

ON OCTOBER 15, 1975, THE TAHOE-TRUCKEE SANITATION AGENCY CONTRACTED WITH DEL E. WEBB CORPORATION AND UMEC, A JOINT VENTURE, FOR THE CONSTRUCTION OF A WASTE WATER TREATMENT FACILITY TO TAHOE VISTA, CALIFORNIA. SINCE THIS PROJECT WAS FUNDED, IN PART, BY FEDERAL FUNDS, THE CONTRACTOR AGREED NOT ONLY TO COMPLY WITH THE REQUIREMENTS OF THE STATE LABOR STANDARDS RELATIVE TO THE PAYMENT OF PREVAILING WAGES, BUT ALSO TO COMPLY WITH THE WAGE DETERMINATION ISSUED BY DOL. THE DETERMINATION ISSUED BY DOL WAS ISSUED PURSUANT TO DOL'S AUTHORITY UNDER THE DAVIS-BACON ACT. 40 U.S.C. 276A (1970). THE LIST OF PREVAILING WAGE RATES, WHICH WAS INCLUDED IN THE CONTRACT, WAS BASED ON A WAGE DETERMINATION ISSUED BY DOL AND PUBLISHED IN THE FEDERAL REGISTER. A STATEMENT IMMEDIATELY FOLLOWING THE LIST STATED, IN PART, THAT "ANY CLASSIFICATION OMITTED HEREIN SHALL BE NOT LESS THAN $9.735 PER HOUR." THE RATE OF $9.735 WAS THE WAGE RATE FOR LABORERS AND WAS THE LOWEST RATE ON THE LIST.

WE ARE ADVISED BY UMEC THAT THE BIDDING FOR THIS CONTRACT THE LABORERS RATE OF $9.735 WAS OVERLOOKED AND UMEC SUBMITTED ITS BID BASED ON THE USE OF "PLUMBERS OR FITTERS HELPERS," A CLASSIFICATION SANCTIONED BY THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, LOCAL UNION NO. 350. THE WAGE RATE, AS ESTABLISHED BY THE COLLECTIVE BARGAINING AGREEMENT, WAS LOWER THAN $9.735 PER HOUR RATE.

IT IS UMEC'S POSITION THAT THE ABOVE-MENTIONED WAGE RATES ARE THE PREVAILING WAGE RATES FOR ITS GEOGRAPHICAL AREA FOR THE PLUMBERS AND FITTERS HELPER CLASSIFICATION. THEREFORE, ACCORDING TO UMEC AN ADDITIONAL CLASSIFICATION SHOULD BE ADDED TO THE DOL WAGE DETERMINATION APPLICABLE TO THE PRESENT PROJECT, THE STATE WAGE RATE DETERMINATION SHOULD BE ALTERED ACCORDINGLY AND THE CONTRACT SHOULD BE MODIFIED TO REFLECT THE PREVAILING WAGE RATE FOR THIS CLASSIFICATION. DOL REFUSED TO ADD THIS CLASSIFICATION TO ITS WAGE DETERMINATION.

UNDER THE DECISION OF THE UNITED STATES COURT OF CLAIMS IN NELLO L. TEER COMPANY V. UNITED STATES, 348 F.2D 533 (1965), THE SECRETARY OF LABOR'S DETERMINATION TO INCLUDE OR OMIT CERTAIN CLASSIFICATIONS OF WORKERS IN A WAGE DETERMINATION IS NOT SUBJECT TO REVIEW BY THE COURTS, OR BY A GOVERNMENT AGENCY. THIS DECISION WAS BASED ON THE HOLDING BY THE SUPREME COURT IN UNITED STATES V. BINGHAMTON CONSTRUCTION CO., 347 U.S. 171 (1954), THAT THE CORRECTNESS OF A PREVAILING WAGE DETERMINATION MADE BY THE SECRETARY OF LABOR IS NOT SUBJECT TO JUDICIAL REVIEW. WE HAVE CONSTRUED THE LATTER DECISION AS PRECLUDING THIS OFFICE FROM REVIEWING THE CORRECTNESS OF A WAGE DETERMINATION. SEE FRAMLEA CORPORATION V. DEMBLING, 360 F.SUPP. 806 (1973); INTERNATIONAL UNION OF OPERATING ENGINEERS, B-182408, FEBRUARY 12, 1975, 75-1 CPD 90; ASSOCIATED BUILDERS & CONTRACTORS, INC.; NEW ENGLAND YANKEE CHAPTER, B-183475, APRIL 8, 1975, 75-1 CPD 215; TALON CONSTRUCTION COMPANY, B-185336, DECEMBER 3, 1975, 75-2 CPD 370.

ACCORDINGLY, SINCE THE MATTER COMPLAINED OF RELATES TO THE PROPRIETY OR CORRECTNESS OF A PREVAILING WAGE DETERMINATION, OUR OFFICE IS PRECLUDED FROM FURTHER REVIEWING THE MATTER AND NO FURTHER ACTION WILL BE TAKEN.