B-129757, NOV. 16, 1959

B-129757, NOV. 16, 1959

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

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 30, 1959, ENCLOSING A DRAFT OF A PROPOSED CONTRACT WITH HIDALGO COUNTY WATER CONTROL AND IMPROVEMENT DISTRICTS NOS. 7 AND 14 OF MISSION, TEXAS, PERTAINING TO THE COMPLETION OF THE LOWER RIO GRANDE FLOOD CONTROL PROJECT, AND, AS YOUR LETTER IS UNDERSTOOD, REQUESTING A DECISION AS TO WHETHER THE CONSTRUCTION CONTRACT TO BE ENTERED INTO BY DISTRICTS NOS. 7 AND 14 PURSUANT TO THE DRAFT CONTRACT SUBMITTED WOULD BE SUBJECT TO THE WAGE PROVISIONS OF THE DAVIS- BACON ACT (40 U.S.C. 276A).

MANY OF THE PERTINENT FACTS ARE SET OUT IN OUR DECISIONS DATED NOVEMBER 29, 1956, APRIL 15, 1959, AND OCTOBER 22, 1959, AND NEED NOT BE REPEATED HERE. IN OUR DECISION TO YOU DATED OCTOBER 22, 1959, B 129757, WE HELD THAT A PROPOSED CONTRACT WITH DISTRICTS NOS. 7 AND 14 PROVIDING THAT THE DISTRICTS WOULD OBTAIN AND DONATE TO THE UNITED STATES ALL RIGHTS OF WAY REQUIRED FOR THE UNITED STATES LEVEE WHICH CAMERON COUNTY, TEXAS, IS UNABLE TO FURNISH AND WOULD ALSO 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 WOULD BE AUTHORIZED, PROVIDED THE CONSTRUCTION WORK WOULD BE PERFORMED IN ACCORDANCE WITH ALL STATUTORY REQUIREMENTS GENERALLY APPLICABLE TO CONTRACTS FOR PUBLIC WORKS OF THE UNITED STATES, INCLUDING THE PROVISIONS OF THE DAVIS-BACON ACT AS TO WAGES.

IN YOUR LETTER OF OCTOBER 30, 1959, YOU STATE, IN SUBSTANCE, THAT THE DISTRICTS ARE UNWILLING TO ENTER INTO A CONSTRUCTION CONTRACT TO WHICH THE WAGE PROVISIONS OF THE DAVIS-BACON ACT ARE APPLICABLE BUT APPARENTLY ARE WILLING TO ENTER INTO A CONSTRUCTION CONTRACT FOR CONSTRUCTION OF THEIR CANAL AND "THE JOINT-USE PRISM AND REQUIRED DRAINAGE AND IRRIGATION STRUCTURES" WHICH ARE APPURTENANT TO BOTH THEIR CANAL AND THE UNITED STATES LEVEE, PURSUANT TO THE DRAFT CONTRACT SUBMITTED WITH YOUR LETTER, IF THE WAGE PROVISIONS OF THE DAVIS-BACON ACT ARE HELD INAPPLICABLE TO SUCH CONSTRUCTION CONTRACT.

IT IS UNDERSTOOD THAT THE CONTEMPLATED LEVEE WILL BE THE PROPERTY OF THE UNITED STATES WHILE THE CANAL WILL BE THE PROPERTY OF DISTRICTS NOS. 7 AND 14 AND THAT ALTHOUGH, UNDER THE EXISTING CONTRACT, THE UNITED STATES IS TO BEAR THE COST OF CONSTRUCTION OF THE JOINT-USE PRISM AND UNDERLYING STRUCTURES, THE PRISM AND REFERRED-TO STRUCTURES ARE APPURTENANT TO BOTH THE LEVEE AND THE CANAL. YOU STATE THAT THE PRISM AND UNDERLYING STRUCTURES MUST BE CONSTRUCTED AT ONE AND THE SAME TIME AS A PART OF EITHER THE LEVEE OR THE CANAL AND THAT IN CONSTRUCTING THEIR CANAL FIRST THE DISTRICTS WOULD HAVE TO BE THE PARTY TO CONSTRUCT THE PRISM AND UNDERLYING STRUCTURES.

BRIEFLY, THE DRAFT CONTRACT SUBMITTED PROVIDES THAT THE DISTRICT SHALL LET A CONTRACT FOR THE CONSTRUCTION OF THEIR CANAL, INCLUDING THE JOINT- USE PRISM AND CERTAIN UNDERLYING STRUCTURES, AND THAT THE UNITED STATES SHALL REIMBURSE THE DISTRICTS FOR CERTAIN COSTS INCURRED IN THE CONSTRUCTION OF THE JOINT-USE FACILITIES. WHEN THE NECESSARY RIGHTS OF WAY ARE FURNISHED, THE UNITED STATES SHALL AWARD A CONTRACT FOR CONSTRUCTION OF ITS LEVEE AND A CERTAIN BYPASS CANAL SECTION.

AS SET FORTH IN YOUR LETTER OF OCTOBER 30, 1959, AND PRIOR CORRESPONDENCE, THE SITUATION EXISTING WITH RESPECT TO THE NEED FOR PROMPT CONSTRUCTION OF THE CONTEMPLATED CANAL AND LEVEE APPEARS TO BE OF AN EMERGENCY NATURE, INVOLVING GRAVE DANGER OF DAMAGE TO THE DISTRICTS AND THE PEOPLE OF THE AREA AND RESULTING LITIGATION AND CLAIMS AGAINST THE UNITED STATES, ALL ARISING FROM THE INABILITY OF CAMERON COUNTY, TEXAS, TO DONATE RIGHTS OF WAY TO THE UNITED STATES AS ORIGINALLY INTENDED AND THE RESULTING INABILITY OF THE UNITED STATES TO CARRY OUT ITS PRIOR CONTRACT WITH DISTRICTS NOS. 7 AND 14. THE DRAFT CONTRACT WOULD RELEASE THE UNITED STATES FROM ALL CLAIMS ARISING UNDER THE PRIOR CONTRACT.

IT IS UNDERSTOOD THAT THE CONTEMPLATED CONSTRUCTION CONTRACT TO BE ENTERED INTO BY THE DISTRICTS WOULD COVER THE CANAL, WHICH WOULD BE THEIR PROPERTY EXCLUSIVELY, AND ALSO WOULD COVER INCIDENTALLY CERTAIN JOINT-USE FACILITIES, THE OWNERSHIP AND USE OF WHICH THE DISTRICTS WOULD SHARE WITH THE UNITED STATES. IN VIEW OF THE FACTS AND CIRCUMSTANCES ABOVE SET OUT IT IS CONCLUDED THAT THERE IS A REASONABLE BASIS FOR HOLDING THAT THE CONSTRUCTION CONTEMPLATED UNDER THE CONSTRUCTION CONTRACT TO BE ENTERED INTO BY THE DISTRICTS IS NOT "A PUBLIC WORK OF THE UNITED STATES" WITHIN THE MEANING OF THE DAVIS BACON ACT. THEREFORE, THE PROVISIONS OF THAT ACT WOULD NOT BE APPLICABLE TO THAT CONTRACT. YOUR QUESTION IS ANSWERED ACCORDINGLY.