B-129757, OCT. 22, 1959

B-129757, OCT. 22, 1959

TO COMMISSIONER, UNITED STATES SECTION, INTERNATIONAL BOUNDARY AND WATER COMMISSION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11, 1959, REQUESTING A DECISION AS TO WHETHER A CERTAIN PROPOSED CONTRACT WITH HIDALGO COUNTY WATER CONTROL AND IMPROVEMENT DISTRICTS NOS. 7 AND 14 OF MISSION, TEXAS, WOULD BE AUTHORIZED.

IN YOUR LETTER IT IS STATED THAT THE CONTRACTS WITH DISTRICTS NOS. 7 AND 14 PERTAINING TO THE COMPLETION OF THE LOWER RIO GRANDE FLOOD CONTROL PROJECT, DISCUSSED IN OUR DECISIONS TO YOU DATED NOVEMBER 29, 1956, AND APRIL 15, 1959, HAVE NOT BEEN CONSUMMATED BECAUSE OF THE FINANCIAL INABILITY OF CAMERON COUNTY, TEXAS, TO ACQUIRE AND DONATE TO THE UNITED STATES LAND OR EASEMENTS REQUIRED FOR THE PROJECT, THEREBY LEAVING THE UNITED STATES UNABLE TO FULFILL ITS CONTRACT WITH DISTRICTS NOS. 7 AND 14. IT IS STATED FURTHER THAT THAT COMPLETION OF THE PROJECT IS ESSENTIAL TO PROTECTION OF THE LOWER RIO GRANDE VALLEY AND COMPLIANCE WITH TREATY OBLIGATIONS AND THAT THE UNSAFE CONDITION OF EXISTING FACILITIES MAY RESULT IN LARGE ECONOMIC LOSS TO THE AREA AND POSSIBLY TO DAMAGE SUITS AGAINST THE GOVERNMENT.

YOU SUBMIT FOR CONSIDERATION A PROPOSED AGREEMENT WHEREBY DISTRICTS NOS. 7 AND 14 WOULD OBTAIN AND DONATE TO THE UNITED STATES ALL RIGHTS OF WAY REQUIRED FOR THE UNITED STATES LEVEE WHICH CAMERON COUNTY IS UNABLE TO FURNISH. THE DISTRICTS WOULD LET A CONTRACT FOR CONSTRUCTION OF THEIR CANAL AND THAT PART OF THE UNITED STATES LEVEE AND APPURTENANT STRUCTURES WHERE THE CANAL AND LEVEE ARE ADJOINING, SUBJECT TO THE APPROVAL OF YOUR AGENCY WITH RESPECT TO SUCH MATTERS AS THE AMOUNT OF THE BID, UNIT COSTS INCLUDED IN THE BID, RESPONSIBILITY OF THE BIDDER AND A RIGHT OF INSPECTION BY THE UNITED STATES. THE UNITED STATES WOULD AGREE TO REIMBURSE THE DISTRICTS FOR COMPLETED WORK AT INTERVALS ON AN ACTUAL COST BASIS.

YOU EXPRESS THE BELIEF THAT THE PROPOSED CONTRACT WILL BE MOST ADVANTAGEOUS TO THE UNITED STATES UNDER THE CIRCUMSTANCES, SINCE ALL REQUIRED RIGHTS OF WAY WOULD BE DONATED TO THE UNITED STATES, THE EXPENSE WOULD BE NO GREATER THAN UNDER THE ORIGINAL PLAN, THE LIKELIHOOD OF DAMAGE SUITS AGAINST THE GOVERNMENT WOULD BE MATERIALLY LESSENED, IF NOT ELIMINATED, AND THE IMPORTANT PROJECT WOULD BE POSSIBLE OF ACCOMPLISHMENT. YOU STATE THAT CONSTRUCTION OF THE CANAL AND THE LEVEE UNDER ONE CONTRACT WOULD RESULT IN LOWER UNIT COSTS, EARLIER COMPLETION OF THE PROJECT, AND A SUPERIOR LEVEE BY ELIMINATING AN UNDESIRABLE JOINT.

HAVING REGARD FOR THE FACTS AND CIRCUMSTANCES OF THE MATTER AS SET FORTH IN YOUR LETTER AND SINCE THE PROPOSED ACTION APPARENTLY WOULD CARRY OUT IN A MANNER ADVANTAGEOUS TO THE UNITED STATES THE CONSTRUCTION WORK AUTHORIZED BY STATUTE, THERE IS NOT PERCEIVED ANY BASIC OBJECTION TO THE PROPOSED CONTRACT WITH DISTRICTS NOS. 7 AND 14 FOR THE CONSTRUCTION OF THAT PORTION OF THE UNITED STATES LEVEE AND APPURTENANT STRUCTURES ADJOINING THE CANAL, PROVIDED THE CONSTRUCTION WORK IS PERFORMED IN ACCORDANCE WITH ALL STATUTORY REQUIREMENTS GENERALLY APPLICABLE TO CONTRACTS FOR PUBLIC WORKS OF THE UNITED STATES.

WITH RESPECT TO THE QUESTION SUBMITTED IN YOUR LETTER AS TO WHETHER WAGE DETERMINATIONS OF THE SECRETARY OF LABOR, PURSUANT TO THE ACT OF MARCH 3, 1931, 46 STAT. 1494, AS AMENDED, 40 U.S.C. 276A (DAVIS-BACON ACT) WOULD BE APPLICABLE TO THE CONTEMPLATED CONSTRUCTION WORK, IT IS CONCLUDED THAT THE QUESTION MUST BE ANSWERED IN THE AFFIRMATIVE. THE SUBJECT CONSTRUCTION PROJECT CLEARLY IS A PUBLIC WORK OF THE UNITED STATES WITHIN THE MEANING OF THE STATUTE AND THE FACT THAT THE ACTUAL CONSTRUCTION CONTRACT WOULD BE ENTERED INTO BY THE DISTRICTS INSTEAD OF BY THE UNITED STATES CANNOT PROPERLY BE REGARDED AS MAKING THE PROVISIONS OF THE REFERRED-TO STATUTE INAPPLICABLE. SEE 34 COMP. GEN. 697. UNDER THE PROCEDURE CONTEMPLATED, IT SEEMS THAT THE DISTRICTS ACTUALLY WOULD BE AGENTS OF THE UNITED STATES. A CONTRARY CONCLUSION WOULD PERMIT THE GOVERNMENT TO ACCOMPLISH INDIRECTLY WHAT IT COULD NOT DO DIRECTLY, VIZ., CONSTRUCT THE LEVEE WITHOUT COMPLYING WITH THE PROVISIONS OF THE DAVIS-BACON ACT AS TO WAGES.

IT IS SUGGESTED THAT SHOULD THE DISTRICTS DECLINE TO ENTER INTO THE CONTEMPLATED CONTRACT SINCE IT IS HELD THAT THE WAGE DETERMINATIONS OF THE SECRETARY OF LABOR WOULD BE APPLICABLE, THEY MIGHT YET BE WILLING TO OBTAIN AND DONATE TO THE UNITED STATES THE REQUIRED RIGHTS OF WAY OR EASEMENTS SO THAT YOUR AGENCY COULD CONTRACT DIRECTLY FOR CONSTRUCTION OF THE LEVEE.