B-126330, FEBRUARY 14, 1956, 35 COMP. GEN. 454

B-126330, FEBRUARY 14, 1956, 35 COMP. GEN. 454

BONDS - PERFORMANCE - SOIL CONSERVATION WORK - NONAPPLICABILITY OF MILLER ACT CONTRACTS FOR BRUSH AND WEED CONTROL AND FOR RESEEDING INCIDENT TO SOIL AND MOISTURE CONSERVATION WORK ARE NOT CONTRACTS FOR THE CONSTRUCTION, ALTERATION OR REPAIRS OF ANY PUBLIC WORK AS CONTEMPLATED BY MILLER ACT, 40 U.S.C. 270A, AND CONSEQUENTLY PERFORMANCE AND PAYMENT BONDS FOR CONTRACTS IN EXCESS OF $2,000 ARE NOT REQUIRED.

TO THE SECRETARY OF THE INTERIOR, FEBRUARY 14, 1956:

REFERENCE IS MADE TO THE LETTER OF DECEMBER 8, 1955, SIGNED BY THE ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING A DETERMINATION AS TO WHETHER CONTRACTS EXCEEDING $2,000 ENTERED INTO BY YOUR DEPARTMENT FOR SOIL AND MOISTURE CONSERVATION WORK, SUCH AS BRUSH AND WEED CONTROL AND RESEEDING, ARE CONSIDERED AS CONSTRUCTION OF PUBLIC WORKS WITHIN THE PURVIEW OF THE ACT OF AUGUST 24, 1935, 49 STAT. 793, 40 U.S.C. 270A-D, POPULARLY KNOWN AS THE MILLER ACT.

SECTION 1 OF THE MILLER ACT, 40 U.S.C. 270A, REQUIRES THE FURNISHING OF A PERFORMANCE BOND FOR THE PROTECTION OF THE UNITED STATES AND A PAYMENT BOND FOR THE PROTECTION OF ALL PERSONS SUPPLYING LABOR AND MATERIAL IN THE PROSECUTION OF THE WORK PROVIDED FOR IN THE CONTRACT "BEFORE ANY CONTRACT, EXCEEDING $2,000 IN AMOUNT, FOR THE CONSTRUCTION, ALTERATION, OR REPAIR OF ANY PUBLIC BUILDING OR PUBLIC WORK OF THE UNITED STATES IS AWARDED TO ANY PERSON * * *.'

THE LETTER INDICATES THAT THE WORK REQUIRED BY THE BRUSH AND WEED CONTROL CONTRACTS CONSISTS OF ERADICATING UNDESIRABLE VEGETATIVE COVER BY BURNING, PLOWING WITH HEAVY-DUTY DISC PLOWS, DRAGGING A HEAVY RAIL DRAG, OR SPRAYING WITH CHEMICALS. IT FURTHER INDICATES THAT THE WORK REQUIRED BY THE RESEEDING CONTRACTS CONSISTS OF THE PREPARATION OF THE SEEDBED BY PLOWING WITH DISC PLOWS DRAWN BY TRACTORS AND SUBSEQUENTLY PLACING THE SEED IN THE GROUND WITH SEED DRILLS.

THE TERM "PUBLIC WORKS" HAS BEEN VARIOUSLY DEFINED, DEPENDING UPON THE SENSE IN WHICH IT WAS USED. IT HAS BEEN DEFINED AS "ALL FIXED WORKS CONTRACTED FOR PUBLIC USE," SOUTHERN SURETY CO. V. STANDARD SLAG CO., 159 N.E. 559, 560, 117 OHIO ST. 512; AS "ALL FIXED WORKS, CONSTRUCTED FOR PUBLIC USE, AS RAILWAYS, DOCKS, CANALS, WATER-WORKS, ROADS, ETC., " DEMETER LAND CO. V. FLORIDA PUBLIC SERVICE CO., 128 SO. 402, 406, 99 FLA. 954, AND 38 OP. ATTY. GEN. 418; AS "PERMANENT WORKS OR IMPROVEMENTS MADE FOR PUBLIC USE OR BENEFIT, AS ROADS, CANALS, OR HARBORS," FUND AND WAGNALLS NEW STANDARD DICTIONARY AND WEBSTER'S NEW INTERNATIONAL DICTIONARY. IN TITLE GUARANTY AND TRUST CO. V. CRANE CO., 219 U.S. 24, IT WAS HELD THAT A VESSEL, MOVABLE PROPERTY, WAS A "PUBLIC WORK" BECAUSE TITLE PASSED TO THE UNITED STATES AS THE WORK WAS BEING PERFORMED AND SINCE THE VESSEL THEREUPON BECAME THE PROPERTY OF THE UNITED STATES THE WORK PERFORMED ON IT WAS A "PUBLIC WORK," DETERMINING FACTOR NOT BEING WHETHER THE "WORK" WAS ATTACHED TO THE SOIL, BUT WHETHER IT BELONGED TO THE PUBLIC. SEE, ALSO, MAIATICO CONST. CO. V. UNITED STATES, 79 F./2D) 418.

FROM THE FOREGOING IT WILL BE SEEN THAT "PUBLIC WORKS" OF THE UNITED STATES GENERALLY ARE FIXED WORKS OR MOVABLE PROPERTY THE TITLE TO WHICH IS VESTED IN THE UNITED STATES. NO CASE HAS BEEN FOUND IN WHICH THE SURFACE OF THE EARTH IN ITS NATURAL CONTOUR--- THAT IS, WITHOUT ANY DIGGING, EARTH MOVING, OR FABRICATED OBJECT BEING INVOLVED--- WAS CONSIDERED AS A "PUBLIC WORK" EVEN IF SUCH SURFACE WERE OWNED BY THE UNITED STATES. MOREOVER, IT IS CLEAR FROM THE FACTS PRESENTED THAT THE CONTRACTS HERE INVOLVED DO NOT CONTEMPLATE THE PERFORMANCE OF ANY CONSTRUCTION OR REPAIR. EVEN IF THE PROCEDURES CONTEMPLATED BY THE CONTRACTS COULD BE CONSIDERED AS ALTERATIONS, WHICH IS DOUBTFUL, SUCH PROCEDURES ARE NOT BEING PERFORMED ON A "PUBLIC WORK.'

ACCORDINGLY, THE CONTRACTS FOR BRUSH AND WEED CONTROL AND RESEEDING AS DESCRIBED IN THE LETTER NEED NOT BE CONSIDERED AS CONTRACTS "FOR THE CONSTRUCTION, ALTERATION, OR REPAIR OF ANY PUBLIC BUILDING OR PUBLIC WORK" WITHIN THE PURVIEW OF THE MILLER ACT.