B-153619, MAR. 13, 1964

B-153619, MAR. 13, 1964

TO WILFRED N. ANDERSON, FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 24, 1964, TRANSMITTING A VOUCHER AND ACCOMPANYING PAPERS RELATIVE TO THE CLAIM OF THE STATE OF CALIFORNIA, DEPARTMENT OF FISH AND GAME, FOR THE AMOUNT OF $997.50 UNDER COOPERATIVE CONTRACT NO. 14-17-0001-568, WITH A REQUEST FOR A DECISION AS TO PROPRIETY OF PAYMENT.

THE CONTRACT, AUTHORIZED BY THE FISH AND WILDLIFE COORDINATION ACT, 16 U.S.C. 661, COVERED RIPRAPPING OF THE BANKS OF AN ARTIFICIAL SPAWNING CHANNEL ON THE NORTH FORK OF MILL CREEK, TEHAMA COUNTY, CALIFORNIA. WAS BASED ON THE MUTUAL INTEREST OF THE STATE AGENCY AND THE BUREAU OF COMMERCIAL FISHERIES OF THE FISH AND WILDLIFE SERVICE IN THE SALMON FISHERIES. UNDER ITS TERMS, THE STATE WAS TO PERFORM THE RIPRAPPING WORK AND THE BUREAU WAS TO REIMBURSE THE STATE FOR THE COST OF THE WORK ONLY, NOT TO EXCEED $1,000.

AFTER THE WORK HAD BEEN COMPLETED, THE STATE BILLED THE BUREAU FOR THE USE OF STATE INMATE LABOR AT $3.50 PER DAY TOTALLING $997.50. INVESTIGATION DISCLOSED THAT THE STATE AGENCY HAD ARRANGED WITH THE STATE FORESTRY DEPARTMENT TO USE SUCH LABOR, AND EXAMINATION OF THE CONTRACT REVEALED THAT THERE HAD BEEN UNINTENTIONALLY OMITTED FROM IT A CONVICT LABOR PROHIBITION CLAUSE REQUIRED BY EXECUTIVE ORDER 325-A OF MAY 18, 1905, TO BE INCLUDED IN ALL GOVERNMENT CONTRACTS INVOLVING THE EMPLOYMENT OF LABOR. YOU ADVISE THAT NO PROFIT WAS REALIZED BY THE STATE FROM THE ARRANGEMENT, WHICH WAS A PURELY COOPERATIVE GESTURE. ALSO, YOU STATE THAT YOUR AGENCY HAS TAKEN STEPS TO PREVENT RECURRENCE OF THIS TYPE INCIDENT.

SINCE THE AGREEMENT IS FOR THE PERFORMANCE OF WORK, IT WOULD APPEAR THAT IT PROPERLY SHOULD BE CONSIDERED AS A CONTRACT "INVOLVING THE EMPLOYMENT OF LABOR" WITHIN THE PURVIEW OF EXECUTIVE ORDER 325-A AND, THEREFORE, SHOULD HAVE INCLUDED A CONVICT LABOR CLAUSE. SEE, TO THE SAME EFFECT, SUBPART 1-12.2 OF THE FEDERAL PROCUREMENT REGULATIONS. HOWEVER, SINCE THE STATE AGENCY IS CONSIDERED TO HAVE ACTED IN GOOD FAITH, AND WITHOUT KNOWLEDGE OF THE PROHIBITION AGAINST USE OF CONVICT LABOR, IN THE PERFORMANCE OF THE CONTRACT, AND THE WORK APPEARS TO HAVE BEEN COMPLETED AND ACCEPTED BY THE GOVERNMENT, WE ARE NOT REQUIRED TO OBJECT TO PAYMENT FOR THE WORK INVOLVED IN THE AMOUNT SET OUT ON THE VOUCHER AND THE CLAIMANT'S INVOICE.

THE VOUCHER AND SUPPORTING DOCUMENTS ARE RETURNED AS REQUESTED. A COPY OF THIS LETTER SHOULD BE ATTACHED TO THE VOUCHER UPON PAYMENT.