B-150905, MAY 24, 1963

B-150905, MAY 24, 1963

TO MR. GENE C. KENNEDY:

FURTHER REFERENCE IS MADE TO YOUR PROTEST OF FEBRUARY 25, 1963, THAT AN AWARD SHOULD NOT BE MADE UNDER INVITATION FOR BIDS NO. 04-606-63 142, COVERING WORK AT EDWARDS AIR FORCE BASE, CALIFORNIA, UNTIL AMENDED TO CONTAIN THE MINIMUM WAGE CONDITIONS CONTEMPLATED BY THE DAVIS-BACON ACT, 40 U.S.C. 276A.

THE INVITATION, ISSUED JANUARY 25, 1963, SOLICITED BIDS FOR THE PERFORMANCE OF WORK REQUIRED TO INSTALL ADDITIONAL ELECTRICAL CABLE AND TO REROUTE EXISTING CABLE. IT HAS BEEN REPORTED TO US BY THE DEPARTMENT OF THE AIR FORCE THAT THE PROCUREMENT WAS CAREFULLY EVALUATED BY QUALIFIED AIR FORCE TECHNICAL PERSONNEL PRIOR TO ADVERTISING TO DETERMINE THE EXTENT OF CONSTRUCTION WORK INVOLVED. IT WAS CONCLUDED THAT ONLY APPROXIMATELY ONE PERCENT OF THE WORK REQUIRED COULD BE SO CLASSIFIED. IN INVITING BIDS THE CONTRACTING OFFICER SEPARATED THE WORK INTO TWO ITEMS. THE FIRST INCLUDED THE WORK DETERMINED TO BE NONCONSTRUCTION AND THE SECOND INCLUDED THE ONE PERCENT DETERMINED TO BE CONSTRUCTION. MINIMUM WAGE COVERAGE UNDER THE ACT WAS MADE APPLICABLE TO THE SECOND ITEM IN THE EVENT ANY BID THEREFOR EXCEEDED $2,000.

IN MAKING THE SEGREGATION OF WORK UNDER THE INVITATION THERE APPEARS TO HAVE BEEN A MISAPPLICATION OF AIR FORCE LOGISTICS COMMAND INSTRUCTIONS. HOWEVER, THREE OF THE FOUR RESPONDING BIDDERS QUOTED SUBSTANTIALLY LESS THAN $2,000 FOR THE WORK UNDER ITEM TWO. THE AIR FORCE HAS ADVISED, UNDER THE CIRCUMSTANCES, THAT IT CONSIDERS THE LABOR PROVISIONS TO HAVE BEEN SELF-ELIMINATING, STATING "WE FEEL THAT THE SEGREGATION OF THE CONSTRUCTION WORK UNDER ITEM 2 AND THE INCLUSION OF THE LABOR PROVISIONS IN THE INVITATION HAD NO REAL EFFECT ON THE INVITATION AND THE VIOLATION OF THE AFLC INSTRUCTION MAY BE DISREGARDED AS INSIGNIFICANT.'

YOUR PROTEST APPEARS TO BE PREMISED UPON A CONTENTION THAT ALL OF THE WORK SHOULD BE MADE SUBJECT TO THE DAVIS-BACON ACT, BUT NO FACTS HAVE BEEN PRESENTED INDICATING THAT THE DETERMINATIONS OF THE AIR FORCE ARE INACCURATE IN ANY RESPECT. IN THIS CONNECTION, WE KNOW OF NO REQUIREMENT THAT THE DEFINITION OF CONSTRUCTION WORK ADOPTED BY THE GOVERNMENT MUST CONFORM WITH THAT ADOPTED BY A BIDDER OR HIS WORKMEN. INSTALLATION CONTRACTS ARE NOT NORMALLY CONSIDERED TO FALL WITHIN THE CATEGORY OF CONSTRUCTION WORK. NOR DOES THE ACT REGULATE THE ASSIGNMENT OF WORK TO THE VARIOUS TRADES OR CONCERN ITSELF WITH ARRANGEMENTS BETWEEN FIRMS SEEKING FEDERAL CONTRACTS AND THEIR WORKMEN WHICH MAY ADVANTAGE OR DISADVANTAGE THEM IN BIDDING.

THE DAVIS-BACON ACT DIRECTS THE USE OF MINIMUM WAGE CONDITIONS IN THE SPECIFICATIONS OF CONTRACTS "FOR CONSTRUCTION * * *," BUT DOES NOT DIRECT THEIR USE TO COVER CONSTRUCTION WHICH IS ONLY INCIDENTAL TO CONTRACTS FOR OTHER WORK. SUCH CONDITIONS TEND TO INCREASE THE GOVERNMENT'S COST AND MAY NOT BE USED UNLESS AUTHORIZED. 20 COMP. GEN. 18. AS POINTED OUT IN 40 COMP. GEN. 565, THE ACT APPLIES ON THE BASIS OF CONTRACT CONTENT AS A WHOLE, RATHER THAN ON AN ITEM-BY-ITEM BASIS. IF A CONTRACT IS ESSENTIALLY OR SUBSTANTIALLY FOR CONSTRUCTION, ALTERATION, OR REPAIR, THEN ALL WORK UNDER IT IS COVERED. IF NOT, NONE IS COVERED. THUS, ANY ATTEMPT TO PROVIDE COVERAGE ON AN ITEM BASIS CAN ONLY RESULT IN IMPROPERLY ADDING TO THE EXISTING PROVISIONS OF THE ACT A CONCERN FOR THE JURISDICTIONAL INTERESTS OF WORKERS OR ASSOCIATIONS OF WORKERS PERFORMING IN THE AFFECTED CATEGORIES.

UNDER THE CIRCUMSTANCES, WE MUST AGREE WITH THE AIR FORCE THAT PROVISIONS OF THE DAVIS-BACON ACT ARE NOT APPLICABLE TO THE PROCUREMENT OR TO ANY PORTION OF THE WORK.