B-153051, AUG. 24, 1964

B-153051, AUG. 24, 1964

TO L AND A CONTRACTING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JULY 20, 1964, IN WHICH YOU REQUEST RECONSIDERATION OF THAT PORTION OF OUR DECISION OF MARCH 31, 1964, WHICH DENIED YOUR CLAIM FOR ALLEGED INCREASE OF LABOR COSTS ARISING OUT OF THE APPLICATION OF WAGE RATES UNDER CONTRACT DA-34-066 CIVENG-61-1630 (HEREAFTER 1630).

THE FACTS AND CIRCUMSTANCES INVOLVED IN YOUR CLAIM WERE SET FORTH IN CONSIDERABLE DETAIL IN OUR DECISION OF MARCH 31, 1964, AND WILL NOT BE RESTATED HERE, BUT WILL BE REFERRED TO WHEN RELEVANT TO ANY NEW MATTER RAISED IN YOUR REQUEST FOR RECONSIDERATION.

YOUR LETTER OF JULY 20 STATES, IN PART, THAT:

"CONTRACTS 793 AND 794 WERE COMMENCED BEFORE CONTRACT 1630. THE DIRECTIVES IN CONTRACTS 793 AND 794 WHICH CAUSED THE CONTRACTORY TO PAY INCREASED WAGE RATES FOR IRONWORKERS WERE THE BASIS UPON WHICH YOU CONCLUDED THERE WAS MERIT IN THE CONTRACTOR'S CLAIM UNDER THESE CONTRACTS. THESE DIRECTIVES ESTABLISHED FOR THE FIRST TIME THE AREA PRACTICE AS TO THE PREVAILING WAGE SCALE FOR IRONWORKERS ON A PROJECT OF THIS SIZE. AT THE TIME CONTRACT 1630 WAS ENTERED INTO NO SUCH DETERMINATION HAD BEEN MADE AND THE CONTRACTOR APPROACHED CONTRACT 1630 WITHOUT THE BENEFIT OF ANY SUCH DETERMINATION. IN OTHER WORDS, THE CONTRACTOR IN BIDDING ON CONTRACT 1630 WAS IN IDENTICALLY THE SAME POSITION AS WHEN IT BID ON CONTRACTS 793 AND 794. THE CONTRACT DOCUMENT FOR NO. 1630 SPELLED OUT THE IRONWORKERS RATE AT $2.25 PER HOUR, AND THAT IS WHAT THE BID WAS MADE UPON BECAUSE THERE HAD NOT BEEN ESTABLISHED THE AREA PRACTICE AT THAT TIME. THE EXPERIENCE INVOLVED IN THE PERFORMANCE OF CONTRACTS 793 AND 794 CREATED THE AREA PRACTICE AND WHICH SUBSEQUENTLY WAS APPLIED TO CONTRACT 1630. THE VERY DETERMINATION OF THE IRONWORKERS RATES AS A RESULT OF THE EXPERIENCE IN CONTRACTS 793 AND 794 WAS UNKNOWN TO THE CONTRACTOR IN CONTRACT 1630 UNTIL THE COMPLETION OF 793 AND 794 AND YOUR ULTIMATE DECISION. CONSEQUENTLY, THE THREE CONTRACTS ARE RELATED AND NOT SEPARATE. THE VERY DETERMINATION OF MERIT IN THE CLAIMS UNDER CONTRACTS 793 AND 794 ARE APPLICABLE TO CONTRACT 1630.'

YOU ALSO POINT OUT THAT THE CLAIM UNDER CONTRACTS 793 AND 794, WHICH WE HELD TO BE VALID, WAS BASED ON THE HANDLING OF STEEL IN THE UNLOADING, YARD STORAGE, TRUCK LOADING AND TRANSPORTATION FROM RAILROAD SIDINGS TO JOB SITE. THAT SAME SITUATION, YOU ALLEGE, OF HANDLING STEEL IS INVOLVED IN CONTRACT 1630 AND, THEREFORE, YOU DESIRE TO AMEND YOUR CLAIM SO AS TO LIMIT IT TO THE COST OF LABOR INVOLVED IN UNLOADING, YARD STORAGE, TRUCK LOADING AND TRANSPORTATION OF STEEL FROM RAILROAD SIDINGS TO JOB SITE. THE AMOUNT CLAIMED IS $3,390.36 AS DISTINGUISHED FROM THE ORIGINAL CLAIM OF $11,565.66. YOU CONTEND THAT OUR DECISION OF MARCH 31 WHICH DENIED YOUR CLAIM UNDER CONTRACT 1630 APPLIES ONLY TO THE DIFFERENCE BETWEEN $3,390.36 AND THE ORIGINAL CLAIM OF $11,565.66 AND THAT THE DECISION IN YOUR FAVOR ON THE CLAIM UNDER CONTRACTS 793 AND 794 JUSTIFIES YOUR AMENDED CLAIM UNDER CONTRACT 1630.

IN OUR DECISION OF MARCH 31 THE ALLOWANCE OF YOUR CLAIM UNDER CONTRACTS 793 AND 794 WAS PREDICATED ON THE SPECIFIC DIRECTIVE FROM THE GOVERNMENT THAT THE $3.60 PER HOUR IRONWORKER RATE WAS TO BE APPLIED TO ALL IRONWORK INCLUDING BUT NOT LIMITED TO, THE ACTUAL BRIDGE CONSTRUCTION, LOADING AND UNLOADING OF MATERIALS AT POINT OF DELIVERY, STOCKPILING AND ALL RELATED HANDLING OF SUCH MATERIALS. THIS DIRECTIVE WAS CONTAINED IN A LETTER DATED OCTOBER 21, 1960 (AT WHICH TIME CONTRACT 1630 HAD NOT YET BEEN AWARDED), FROM THE CONTRACTING OFFICER TO YOU AND REFERRED SOLELY TO CONTRACTS 793 AND 794.

IN CONTRAST TO THE SITUATION EXISTING UNDER CONTRACTS 793 AND 794, YOUR CLAIM UNDER CONTRACT 1630 FOR INCREASED LABOR COSTS INCIDENT TO THE ERECTION OF STRUCTURAL STEEL WAS DENIED IN TOTO ON THE BASIS THAT THE RECORD FAILED TO DEMONSTRATE THAT PAYMENT BY YOUR COMPANY OF THE INCREASED WAGE RATES INVOLVED WAS CAUSED BY ANY ORDER OR DIRECTIVE OF THE GOVERNMENT. WE NOTED THAT THE LANGUAGE USED IN THE LETTER OF MARCH 6, 1961, FROM THE CONTRACTING OFFICER TO YOUR COMPANY, WHICH YOU CONTENDED CONSTITUTED A DIRECTIVE TO PAY THE HIGHER WAGE RATE, WAS MERELY A REQUEST FOR ACTION BY YOU TO ESTABLISH ADDITIONAL CLASSIFICATIONS FOR BRIDGE CONSTRUCTION PURSUANT TO THE TERMS OF THE CONTRACT. IT WAS POINTED OUT THAT THE EVIDENCE INDICATED YOU DID NOT CONSIDER THE MARCH 6 LETTER TO BE A DIRECTIVE SINCE THE LOWER HOURLY RATE WAS PAID TO REINFORCING IRONWORKERS AFTER MARCH 6 FOR ESSENTIALLY ALL OF THE REINFORCING WORK ON THE CONTRACT EVEN THOUGH THE MARCH 6 LETTER WAS SPECIFICALLY CONCERNED WITH THE ESTABLISHMENT OF NEW REINFORCING, AS WELL AS STRUCTURAL, IRONWORKER RATES.

IT IS CLEAR FROM THE FOREGOING THAT THE OPPOSITE RULINGS ON YOUR TWO CLAIMS WERE NOT BASED ON THE FACT THAT ONE CLAIM WAS FOR THE HANDLING OF STEEL WHILE THE OTHER WAS FOR THE ERECTION OF STEEL, BUT BECAUSE ON THE ERECTION CLAIM UNDER CONTRACT 1630 THERE WAS NO DIRECTIVE FROM THE GOVERNMENT TO PAY THE HIGHER WAGE RATE. MOREOVER, THE CONTROVERSIES AND ISSUES UNDER CONTRACT 1630 DID NOT INVOLVE DISPUTES OVER JOB CONTENT WITHIN THE IRONWORKER CLASSIFICATION AS IN CONTRACTS 793 AND 794, BUT WERE CONCERNED WITH THE ISSUE OF WHETHER THE HIGHER IRONWORKER RATES FOR BRIDGE CONSTRUCTION COULD BE SUBSTITUTED FOR THE ORIGINAL LOWER IRONWORKER RATES SPECIFIED IN THE CONTRACT.

YOUR LETTER OF JULY 20 OFFERS NO EVIDENCE TO INDICATE THAT YOU WERE REQUIRED BY SPECIFIC DIRECTION OR ORDER OF THE GOVERNMENT TO PAY HIGHER WAGES FOR UNLOADING AND HANDLING STRUCTURAL STEEL. NOR DO WE UNDERSTAND YOUR LETTER AS ALLEGING THAT SUCH WAS THE FACT. YOU SAY THAT THE EXPERIENCE INVOLVED IN THE PERFORMANCE OF CONTRACTS 793 AND 794 CREATED THE AREA PRACTICE WHICH WAS SUBSEQUENTLY APPLIED TO CONTRACT 1630 AND THAT THE THREE CONTRACTS ARE RELATED AND NOT SEPARATE. IT IS NOT APPARENT FROM YOUR LETTER JUST HOW, AND IN WHAT MANNER, THE AREA PRACTICE UNDER CONTRACTS 793 AND 794 WAS SUBSEQUENTLY APPLIED TO CONTRACT 1630. YOU DO NOT STATE THAT SUCH APPLICATION WAS ORDERED BY THE GOVERNMENT AND THERE IS NOTHING IN THE RECORD BEFORE US TO INDICATE THAT A GOVERNMENTAL ORDER WAS ISSUED. THUS, IT MUST BE CONCLUDED THAT IF AREA PRACTICE WITH RESPECT TO JOB CONTENT OF THE IRONWORKER CLASSIFICATION UNDER CONTRACTS 793 AND 794 WAS APPLIED TO CONTRACT 1630 SUCH APPLICATION WAS VOLUNTARY ON YOUR PART. IN THAT CONNECTION, WE THINK YOUR LETTER OF APRIL 20, 1961, IN RESPONSE TO THE CONTRACTING OFFICER'S LETTER OF MARCH 6, 1961, WHICH REQUESTED YOUR COMPANY TO ESTABLISH ADDITIONAL IRONWORKER RATES FOR BRIDGE CONSTRUCTION FOR CONTRACT 1630, IS SIGNIFICANT. BY THAT LETTER YOU REFUSED TO HONOR THE CONTRACTING OFFICER'S REQUEST AND STATED, IN PART, THAT:

"EACH CONTRACT AWARDED IN THE EUFAULA AREA IS A DISTINCT AND SEPARATE ENTITY AND THE ONLY BASIS ON WHICH WE OR ANY OTHER CONTRACTOR COULD BASE THE BID ON THIS JOB WOULD BE UNDER THE TERMS AS OUTLINED IN THE PROPOSAL AND SPECIAL PROVISIONS. * * * "

WE HAVE NO REASON TO THINK THAT YOUR VIEWS DURING PERFORMANCE OF CONTRACT 1630 WITH RESPECT TO THE DISTINCTIVENESS OF EACH CONTRACT IN THE EUFAULA AREA WERE DIFFERENT IN REGARD TO QUESTIONS CONCERNING JOB CONTENT WITHIN A CLASSIFICATION THAN THEY WERE WITH RESPECT TO QUESTIONS CONCERNING THE ESTABLISHMENT OF NEW CLASSIFICATIONS. ACCORDINGLY, WE MUST CONCLUDE THAT THE EVIDENCE BEFORE US FAILS TO ESTABLISH THAT ANY INCREASED LABOR COSTS INCIDENT TO THE UNLOADING AND HANDLING OF STRUCTURAL STEEL UNDER CONTRACT 1630 ARE ATTRIBUTABLE TO ANY ORDER OR DIRECTIVE OF THE GOVERNMENT. SEE CENTRAL EXCAVATORS, INC. V. UNITED STATES, 116 CT.CL. 744. OUR PREVIOUS DISALLOWANCE OF YOUR CLAIM MUST THEREFORE BE AFFIRMED.