B-144495, JAN. 23, 1961

B-144495, JAN. 23, 1961

TO L. H. HEWITT:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 16, 1960, INQUIRING WHETHER WE ARE ABLE TO CONCUR IN A CONCLUSION THAT THE DAVIS-BACON ACT (40 U.S.C. 276A), THE EIGHT HOUR LAWS (40 U.S.C. 321), THE COPELAND ANTI-KICKBACK ACT (18 U.S.C. 874 AND 276C), AND THE MILLER ACT (40 U.S.C. 270A), ARE NOT APPLICABLE TO A PROPOSED CONTRACT BETWEEN THE INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES AND MEXICO,AND THE SOUTHERN PACIFIC RAILROAD FOR RELOCATING A PORTION OF THE LATTER'S FACILITIES NOW ON A SITE WHICH WILL BE INUNDATED BY CONSTRUCTION OF THE AMISTAD DAM AND RESERVOIR, NEAR DEL RIO, TEXAS.

YOU POINT OUT THAT RELOCATION OF THE FACILITIES IS AUTHORIZED BY THE ACT OF AUGUST 19, 1935, 22 U.S.C. 277-277E, AND THE AMERICAN-MEXICAN TREATY ACT OF 1950, 22 U.S.C. 277D-1, ET SEQ., AND THAT, SUBJECT TO THE CONCLUSION OF AN AGREEMENT WITH MEXICO PURSUANT TO PUBLIC LAW 86-605 APPROVED JULY 7, 1960, 74 STAT. 360, THE CONTRACT WITH THE SOUTHERN PACIFIC RAILROAD WILL PROVIDE FOR THE COMPANY TO CONSTRUCT THE RELOCATED RAILROAD BY CONTRACT OR SUBCONTRACT, AS IT SEES FIT, THE EXPENSE TO THE COMPANY TO BE REIMBURSED BY THE UNITED STATES. THE RELOCATED FACILITY, IT IS UNDERSTOOD, WILL NOT BE OWNED BY THE UNITED STATES OR CONSTRUCTED ON PUBLIC PROPERTY FOR PUBLIC USE. WHILE GREATER DETAILS ARE NOT FURNISHED, IT IS ASSUMED THAT THE GOVERNMENT HAS FOUND IT NECESSARY TO ACQUIRE INTERESTS IN PROPERTY HELD BY THE CARRIER WITHIN THE PROJECT AREA AND THAT THE CONTRACT REPRESENTS AGREEMENT UPON TERMS REACHED FOR SUCH INTERESTS. THUS, ALTHOUGH THE WORK PROVIDED FOR APPEARS IN A SENSE TO REPRESENT CONSTRUCTION, IT SEEMS CLEAR THAT NOTHING MORE THAN A NON-PUBLIC WORK ACTUALLY IS INVOLVED.

ACCORDINGLY, WE AGREE THAT PROVISIONS REQUIRED BY THE STATUTES IDENTIFIED, WHICH ARE APPLICABLE ONLY TO PUBLIC WORKS OF THE UNITED STATES OR TO WORK IN WHICH IT HAS AN INTEREST, PROPERLY MAY BE OMITTED.