B-150828, FEB. 18, 1965, 44 COMP. GEN. 498

B-150828, FEB. 18, 1965, 44 COMP. GEN. 498

CONTRACTS - LABOR STIPULATIONS - DAVIS-BACON ACT - APPLICABILITY. CONTRACTS - LABOR STIPULATIONS - DAVIS-BACON ACT - APPLICABILITY A COST-PLUS-A-FIXED FEE NEGOTIATED CONTRACT, INCORPORATING THE WELSH HEALEY PUBLIC CONTRACTS ACT RELATING TO THE MANUFACTURE OR FURNISHING OF SUPPLIES, AND THE WORK HOURS ACT OF 1962, UNDER WHICH PARTS MANUFACTURED AT THE CONTRACTOR'S PLANT BY INDUSTRIAL UNION MEMBERS ARE ASSEMBLED BY THESE EMPLOYEES AT THE GOVERNMENT JOB SITE FOR USE IN SPACE PROJECTS MAY NOT BE AMENDED TO INCLUDE DAVIS-BACON ACT PROVISIONS, 40 U.S.C. 276A, TO ACCOMPLISH PARTS ASSEMBLY BY CRAFT UNION MEMBERS INSTEAD OF THE INDUSTRIAL WORKERS, AND TO AUTHORIZE PAYMENT OF THE MINIMUM WAGE RATES PRESCRIBED UNDER THE ACT BY THE SECRETARY OF LABOR FOR THE JOB SITE, THE FACTS NOT WARRANTING CONCLUSION THAT THE CONTRACT IS FOR THE CONSTRUCTION OF A PUBLIC BUILDING OR PUBLIC WORK WITHIN THE CONTEMPLATION OF THE DAVIS-BACON ACT, AND THE AUTHORITY OF THE SECRETARY OF LABOR UNDER 5 U.S.C. 133Z-15 TO PRESCRIBE STANDARDS, REGULATIONS AND PROCEDURES NOT EXTENDING TO ENFORCEMENT; THEREFORE, THE GOOD FAITH DETERMINATION BY THE CONTRACTING OFFICER, PURSUANT TO AGENCY RESPONSIBILITY TO AWARD, ADMINISTER AND ENFORCE CONTRACTS, THAT THE ACT DOES NOT APPLY WILL NOT BE DISTURBED. WHEN A DETERMINATION THAT THE DAVIS-BACON ACT, 41 U.S.C. 276A, REQUIREMENTS FOR PAYMENT OF MINIMUM WAGES IS NOT APPLICABLE TO A CONTRACT UNDER WHICH PARTS MANUFACTURED AT THE CONTRACTOR'S PLANT BY INDUSTRIAL WORKERS ARE ASSEMBLED BY THEM AT THE SPACE PROJECT JOB SITE IS UPHELD, AMENDMENT OF THE CONTRACT TO PROVIDE FOR PARTS ASSEMBLY BY CRAFT WORKERS AND TO PAY THE WAGE RATES PRESCRIBED BY THE ACT FOR THE JOB SITE MAY NOT BE AUTHORIZED UNDER GENERAL CONTRACT LAW WHERE DOUBT AS TO THE APPLICABILITY OF THE ACT EXISTS, AND EVEN IF THE ACT WAS HELD TO APPLY, THE CONTRACT HAVING BEEN SUBSTANTIALLY COMPLETED, AMENDMENT OF THE CONTRACT WOULD BE UNREASONABLE, INCREASING COSTS AND DELAYING PERFORMANCE, AND WHERE THE ACT--- NOT A JURISDICTIONAL DISPUTE SETTLEMENT STATUTE--- DOES NOT SPECIFY THAT WORK COVERED BY ITS MINIMUM WAGE PROVISIONS MUST BE PERFORMED BY BUILDING TRADE OR CRAFT WORKERS AS DISTINGUISHED FROM INDUSTRIAL WORKERS, BUT ONLY REQUIRES THAT LABOR AND MECHANICS RECEIVE NOT LESS THAN THE MINIMUM WAGE STIPULATED BY THE CONTRACT.

TO THE ADMINISTRATOR, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, FEBRUARY 18, 1965:

WE REFER TO A LETTER DATED FEBRUARY 2, 1965, AND ENCLOSURES, FROM MR. EARL D. HILBURN, DEPUTY ASSOCIATE ADMINISTRATOR, REQUESTING OUR OPINION ON THE PROPRIETY OF AMENDING A CONTRACT AWARDED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) TO THE MARION POWER SHOVEL COMPANY, A DIVISION OF UNIVERSAL MARION CORPORATION (MARION), TO INCLUDE THE WAGE RATE PROVISIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, ET SEQ.

THE FACTS AND CIRCUMSTANCES INVOLVED IN THE MATTER UPON WHICH OUR OPINION IS REQUESTED ARE SET FORTH IN YOUR DRAFT LETTER OF DECEMBER 21, 1964, AGK/BMORITZ:ARK. IT IS STATED THEREIN THAT ON MARCH 25, 1963, AFTER COMPETITION, A COST-PLUS-INCENTIVE FEE CONTRACT FOR ENGINEERING, DESIGNING, MANUFACTURING, FABRICATING, AND TESTING TWO IDENTICAL CRAWLER- TRANSPORTERS WAS ENTERED INTO WITH MARION. THE CONTRACT INCLUDED PROVISIONS INCORPORATING THE WALSH-HEALEY PUBLIC CONTRACTS ACT, 41 U.S.C. 35 NOTE, AND THE WORK HOURS ACT OF 1962, 40 U.S.C. 327 NOTE, BUT DID NOT INCLUDE DAVIS-BACON ACT PROVISIONS.

IT IS REPORTED THAT THE DAVIS-BACON ACT WAS NOT CONSIDERED TO BE APPLICABLE TO THIS CONTRACT AND THAT THE CONTRACTING OFFICER REACHED THIS DECISION BECAUSE HE REGARDED THE CRAWLER-TRANSPORTER AS A VEHICLE SIMILAR TO MISSILE-CARRYING VEHICLES MANUFACTURED FOR THE ARMY AND AIR FORCE UNDER CONTRACTS WHICH DID NOT CONTAIN DAVIS-BACON ACT PROVISIONS.

UNDER THE MARION CONTRACT VIRTUALLY ALL OF THE MAJOR UNITS AND COMPONENTS WERE TO BE FABRICATED AT MARION'S PLANT AT MARION, OHIO. THE WORK INVOLVED AT CAPE KENNEDY, IT IS STATED, IS PRIMARILY THE ASSEMBLY OF STRUCTURAL ELEMENTS WHICH ARE TOO LARGE TO TRANSPORT ECONOMICALLY FROM MARION'S PLANT AND OF OTHER COMPONENTS WHICH COULD NOT BE INSTALLED UNTIL THE STRUCTURAL ELEMENTS HAD BEEN ASSEMBLED. THE FIRST CRAWLER WAS ASSEMBLED AND TESTED AT MARION'S PLANT AFTER WHICH IT WAS BROKEN DOWN INTO SHIPPABLE SEGMENTS AND SENT TO CAPE KENNEDY BY RAIL. THE SECOND CRAWLER- TRANSPORTER, IT IS REPORTED, WILL NOT BE ASSEMBLED AND TESTED AT MARION'S PLANT BUT, AS THE RESULT OF EXPERIENCE WITH THE FIRST CRAWLER, WILL BE TESTED AFTER ASSEMBLY AT THE CAPE. IT IS FURTHER REPORTED THAT EXCEPT FOR PORTIONS OF THE WORK WHICH HAVE BEEN SUBCONTRACTED, MARION HAS USED ITS OWN EMPLOYEES FOR THE ASSEMBLY WORK AT THE CAPE. THESE EMPLOYEES, WHO ARE MEMBERS OF THE UNITED STEEL WORKERS OF AMERICA, ARE THE SAME PERSONEL WHO PERFORMED WORK UNDER THE CONTRACT AT MARION'S PLANT.

BY LETTER DATED AUGUST 14, 1964, THE SOLICITOR OF LABOR FORWARDED TO YOU "FOR YOUR INFORMATION" A COPY OF THE FOLLOWING LETTER ADDRESSED BY HIM ON THE SAME DATE OF THE GENERAL PRESIDENT OF THE INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL CIO:

THANK YOU FOR YOUR LETTER CONCERNING THE APPLICATION OF THE DAVIS BACON ACT TO A CONTRACT FOR MANUFACTURING, FABRICATING AND JOB-SITE ASSEMBLY OR ERECTION AT CAPE KENNEDY, FLORIDA, OF TWO LARGE TRANSPORTERS. THE CONTRACT IS BETWEEN THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION AND THE MARION POWER SHOVEL COMPANY OF MARION, OHIO. AS YOU KNOW, THE DEPARTMENT OF LABOR HAS ALSO RECEIVED OTHER PROTESTS CONCERNING THIS SAME MATTER, WHICH HAVE PROMPTED US TO MAKE AN EXTENSIVE REVIEW OF THE CIRCUMSTANCES UNDER WHICH THIS CONTRACT IS BEING PERFORMED. I AM ENCLOSING A SUMMARY STATEMENT OF THESE CIRCUMSTANCES FOR YOUR INFORMATION.

IT IS MY CONSIDERED OPINION, AS A MATTER OF LEGAL INTERPRETATION OF THE DAVIS-BACON ACT, THAT THE JOB-SITE ACTIVITIES AT CAPE KENNEDY, FLORIDA, IN THE PERFORMANCE OF THIS CONTRACT ARE AN INTEGRAL PART OF AN OVER-ALL CONSTRUCTION PROJECT NECESSARY TO THE MANUFACTURE, POSITIONING AND SERVICING OF THE APOLLO SPACECRAFT AND THE THREE STAGE SATURN V LAUNCH VEHICLE TO THE EXTENT THAT THESE ACTIVITIES ARE MORE THAN INCIDENTAL IN CHARACTER AND ARE COORDINATED AND PERFORMED AT CAPE KENNEDY, FLORIDA, AND, THEREFORE, ARE SUBJECT TO THE PREVAILING WAGE REQUIREMENTS OF THIS STATUTE.

BECAUSE OF THE UNUSUAL CIRCUMSTANCES OF THIS CASE, THIS RULING SHOULD BE CONSIDERED AS APPLYING ONLY TO THE SPECIAL FACTS PRESENTED HERE AND SHOULD NOT BE CONSIDERED AS A PRECEDENT FOR ANY FUTURE ACTION IN ANY OTHER MATTER.

THE SUMMARY STATEMENT REFERRED TO IN THE SOLICITOR OF LABOR'S LETTER READS AS FOLLOWS:

ACCORDING TO OUR INFORMATION, THE AWARDING OF A COST-PLUS-A-FIXED FEE NEGOTIATED CONTRACT TO THE MARION POWER SHOVEL COMPANY, MARION, OHIO, FOR THE DESIGN, FABRICATION, AND ERECTION OF TWO CRAWLER TRANSPORTERS WAS ANNOUNCED IN MARCH 1963 BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION'S LAUNCH OPERATIONS CENTER AT CAPE KENNEDY, FLORIDA. THE OVER-ALL DIMENSIONS OF THE CRAWLER-TRANSPORTER WILL BE 20 FEET HIGH, 130 FEET LONG AND 114 FEET WIDE, EACH WEIGHING FIVE MILLION POUNDS. THE CRAWLER ASSEMBLY AT EACH OF THE FOUR CORNERS WILL MEASURE ABOUT 24 FEET BY 40 FEET. THERE WILL BE A TOTAL OF SIXTEEN DRIVING MOTORS, TWO ON EACH TRACK, WHICH WILL BE POWERED BY TWO 2800 H.P. DIESEL ELECTRIC GENERATORS. THESE CRAWLERS WILL PLAY A VITAL ROLE IN THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION'S PROGRAM TO LAUNCH ASTRONAUTS TO THE MOON. THE APOLLO SPACECRAFT AND THE THREE STAGE SATURN V LAUNCH VEHICLE WILL BE ERECTED IN VERTICAL POSITION WITH THE UMBILICAL TOWER ON A FABRICATED BASE. WHEN EVERYTHING IS READY TO GO, THE CRAWLER WILL MOVE UNDER THE BASE AND HYDRAULICALLY PICK UP BASE, UMBILICAL TOWER AND LAUNCH VEHICLE. TRAVELING AT SPEEDS UP TO FIVE MILES PER HOUR, THE CRAWLER WILL TRANSPORT THIS ASSEMBLY SOME THREE MILES TO THE LAUNCH SITE, WHERE IT WILL POSITION THE BASE, TOWER, AND LAUNCH VEHICLE ON THE LAUNCH PAD.

IT IS OUR UNDERSTANDING THAT MARION POWER SHOVEL COMPANY, IN COOPERATION WITH THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, SENT A CONTINGENT OF ITS PLANT EMPLOYEES TO THE MARSHALL SPACE FLIGHT CENTER AT HUNTSVILLE, ALABAMA, TO TRAIN THEM IN THE WELDING PROCESSES TO BE USED IN THE ERECTION OF THE TRANSPORTERS. THEY ARE PAID THE BASIC PLANT RATE PLUS CERTAIN FRINGE BENEFITS. CRANES USED IN THE UNLOADING AND ERECTION AT THE SITE HAVE BEEN CONTRACTED FOR ON A FULLY OPERATED BASIS. THIS CONTRACTOR IS PAYING HIS OPERATORS THE PREDETERMINED RATES ESTABLISHED FOR THE CAPE. UNDERSTAND THE ASSEMBLY AT THE CAPE INCLUDES INSTALLATION OF DIESEL GENERATORS, PUMPS, CONTROLS, DUCT WORK, HYDRAULIC WORK AND WIRING, AND THAT PORTIONS OF THIS WORK WILL BE CONTRACTED FOR IN ORDER TO SECURE SKILLED WORKMEN IN THESE CRAFTS. WORK AT THE SITE BEGAN ABOUT APRIL 20, 1964, AND WILL TAKE APPROXIMATELY SIX MONTHS TO COMPLETE. ABOUT 40 WORKMEN WILL BE EMPLOYED ON THE PROJECT SITE.

THEREAFTER, BY LETTER OF SEPTEMBER 8, 1964, THE SOLICITOR OF LABOR ADVISED THE DIRECTOR OF LABOR RELATIONS, NASA, THAT:

* * * I WISH TO EMPHASIZE THAT THE OPINION EXPRESSED IN THAT LETTER (LETTER OF AUGUST 14, 1964) CONCERNING THE APPLICATION OF THE DAVIS BACON ACT TO CERTAIN ACTIVITIES AT CAPE KENNEDY, FLORIDA, WAS LIMITED TO THE CRAWLER-TRANSPORTED MACHINE AND DID NOT RELATE TO ANY OTHER ACTIVITIES ON ANY OTHER WORK AT CAPE KENNEDY, FLORIDA.

IT IS REPORTED THAT THE INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, RELYING ON THE SOLICITOR OF LABOR'S LETTER, HAS REQUESTED THAT THE ASSEMBLY OF THE CRAWLER TRANSPORTERS AT CAPE KENNEDY BE DONE BY THEIR MEMBERS, RATHER THAN THE UNITED STEEL WORKERS WHO ARE EMPLOYEES OF MARION, CONTENDING THAT THEY HAVE JURISDICTION OVER WORK OF THE TYPE INVOLVED WHICH IS SUBJECT TO THE DAVIS-BACON ACT.

THE VARIOUS CONSIDERATIONS INVOLVED IN AMENDING THE MARION CONTRACT TO INCORPORATE THE PROVISIONS OF THE DAVIS-BACON ACT ARE DETAILED IN YOUR DRAFT LETTER OF DECEMBER 12, 1964, AS FOLLOWS:

WE HAVE GIVEN SERIOUS CONSIDERATION TO THE UNION'S REQUEST THAT WE IMPLEMENT THE SOLICITOR OF LABOR'S AUGUST 14 LETTER BY AMENDING THE CONTRACT WITH MARION TO INCLUDE APPROPRIATE DAVIS-BACON PROVISIONS ON A PROSPECTIVE BASIS. INASMUCH AS THE ASSEMBLY OF THE FIRST CRAWLER WILL BE COMPLETED EARLY IN JANUARY, WE HAVE NOT FELT THAT AMENDMENT OF THE CONTRACT WITH REGARD TO CRAWLER 1 ASSEMBLY WAS FEASIBLE OR PRACTICABLE. ASSEMBLY OF THE SECOND CRAWLER COULD BE ACCOMPLISHED IN THE MANNER REQUESTED BY THE UNION. TO EXPLORE THIS WE HAVE REQUESTED AND RECEIVED A PROPOSAL FROM MARION * * * REGARDING ASSEMBLY OF THE SECOND CRAWLER AT THE WORK SITE UNDER DAVIS-BACON PROVISIONS. MARION HAS INDICATED THAT IT WOULD COMPLETE THE WORK IN THE MANNER REQUESTED BY THE UNION, THAT IS, WITH TRADES UNION PERSONNEL AT THE CAPE RATHER THAN ITS OWN PERSONNEL, AT A COST INCREASE OF $783,000 EXCLUSIVE OF OVERHEAD AND FEE, AND WITH A TIME EXTENSION OF 20 WEEKS. WE BELIEVE THAT NEGOTIATION WOULD REDUCE THESE FIGURES SOMEWHAT. WE PRESENTLY ESTIMATE MARION'S NET ADDITIONAL COSTS UNDER ITS CONTRACT AT ABOUT $750,000 AND DELAY TO THE WORK OF 14 WEEKS. * * HOWEVER, THE IMPACT UPON THE GOVERNMENT'S APOLLO PROGRAM WOULD BE FAR GREATER THAN THE ADJUSTMENTS TO THE MARION CONTRACT WOULD SEEM TO INDICATE. FOR EXAMPLE, THE ENTIRE PROGRAM MIGHT HAVE TO BE SLIPPED BY THE PERIOD INDICATED TO ASSURE THAT THE BACKUP REQUIRED IN THE FORM OF THE SECOND CRAWLER WAS AVAILABLE ON THE DATES PROJECTED FOR LAUNCHINGS. THE DOLLAR EFFECT OF SUCH A SLIPPAGE COULD BE MANY MULTIPLES OF THE DOLLAR IMPACT ESTIMATED FOR THE MARION CONTRACT ITSELF BE MANY MULTIPLES OF THE DOLLAR IMPACT ESTIMATED FOR THE MARION CONTRACT ITSELF AND THE IMPACT SCHEDULE-WISE OF SPECULATIVE BUT SERIOUS MOMENT TO THE NATION.

IT IS REPORTED THAT FAILURE TO IMPLEMENT THE SOLICITOR OF LABOR'S LETTER MIGHT RESULT IN LABOR UNREST AT THE CAPE AND EVEN IN STRIKES WHICH COULD ALSO BE DISRUPTIVE OF THE APOLLO PROGRAM. IT SHOULD BE NOTED IN THAT REGARD THAT THE RECORD SUBMITTED TO OUR OFFICE INDICATES THAT LABOR PEACE WILL NOT NECESSARILY BE ACHIEVED AT CAPE KENNEDY BY THE INCORPORATION OF DAVIS-BACON ACT PROVISIONS IN THE MARION CONTRACT. IN A MEMORANDUM PREPARED BY THE DIRECTOR, NASA-KSC, IT IS STATED THAT IN THE EVENT THE WORK IN QUESTION WAS REASSIGNED TO CRAFT UNION MEMBERS THERE APPEARED TO BE A REAL POSSIBILITY THAT THE UNITED STEEL WORKERS, AN INDUSTRIAL UNION REPRESENTING MARION'S EMPLOYEES, MIGHT STRIKE AND/OR PICKET AT MILA (MERRIT ISLAND LAUNCH AREA WHERE THE ASSEMBLY WORK IS TO TAKE PLACE) OR AT THE MARION PLANT.

THE DRAFT LETTER STATES THAT IN ATTEMPTING TO FIND A SOLUTION TO THE PROBLEM WHICH FACES NASA YOU HAVE CONSIDERED APPLICABLE DECISIONS OF OUR OFFICE. YOU REFER SPECIFICALLY TO OUR DECISION REPORTED AT 40 COMP. GEN. 565 FROM WHICH YOU CONCLUDE THAT NASA IS PRECLUDED, FOR THE PURPOSE OF FURTHERING LABOR STANDARDS OBJECTIVES FROM AMENDING AN EXISTING CONTRACT THAT HAS BEEN SUBSTANTIALLY PERFORMED SO AS TO ADD DAVIS-BACON WAGE RATES WHICH HAD BEEN OMITTED INITIALLY FROM THE CONTRACT INVOLVED.

THE DAVIS-BACON ACT PROVIDES, IN PERTINENT PART, THAT:

* * * THE ADVERTISED SPECIFICATIONS FOR EVERY CONTRACT IN EXCESS OF $200,000 * * * FOR CONSTRUCTION, ALTERATION AND/OR REPAIR, INCLUDING PAINTING AND DECORATING, OF PUBLIC BUILDINGS OR PUBLIC WORKS OF THE UNITED STATES * * * AND WHICH REQUIRES TO INVOLVES THE EMPLOYMENT OF MECHANICS AND/OR LABORERS SHALL CONTAIN A PROVISION STATING THE MINIMUM WAGES TO BE PAID VARIOUS CLASSES OF LABORERS AND MECHANICS WHICH SHALL BE BASED UPON THE WAGES THAT WILL BE DETERMINED BY THE SECRETARY OF LABOR TO BE PREVAILING FOR THE CORRESPONDING CLASSES OF LABORERS AND MECHANICS EMPLOYED ON PROJECTS OF A CHARACTER SIMILAR TO THE CONTRACT WORK IN THE CITY, TOWN, VILLAGE, OR OTHER CIVIL SUBDIVISION OF THE STATE IN WHICH THE WORK IS TO BE PERFORMED * * * AND EVERY CONTRACT BASED UPON THESE SPECIFICATIONS SHALL CONTAIN A STIPULATION THAT THE CONTRACTOR OR HIS SUBCONTRACTORS SHALL PAY ALL MECHANICS AND LABORERS EMPLOYED DIRECTLY UPON THE SITE OF THE WORK * * * THE FULL AMOUNTS ACCRUED AT TIME OF PAYMENT, COMPUTED AT WAGE RATES NOT LESS THAN THOSE STATED IN THE ADVERTISED SPECIFICATIONS * * *.

BY ITS EXPRESS TERMS THE DAVIS-BACON ACT APPLIES TO CONTRACTS FOR "CONSTRUCTION, ALTERATION AND/OR REPAIRS * * * OF PUBLIC BUILDINGS OR PUBLIC WORKS OF THE UNITED STATES * * *.' WE HAVE CAREFULLY NOTED THE SOLICITOR OF LABOR'S LETTER OF AUGUST 14, 1964, AND WHILE THE BASES STATED THEREIN TO SUPPORT HIS OPINION ARE NOT ENTIRELY CLEAR, WE FIND NO COGENT OR PERSUASIVE REASONS IN THAT LETTER TO SUPPORT A CONCLUSION THAT THE MARION CONTRACT IS A CONTRACT FOR THE CONSTRUCTION OF A PUBLIC BUILDING OR PUBLIC WORK WITHIN THE CONTEMPLATION OF THE DAVIS-BACON ACT. THE CONTRACTING OFFICER DETERMINED THAT THE WALSH-HEALEY ACT (RELATING TO THE MANUFACTURE OR FURNISHING OF SUPPLIES), RATHER THAN THE DAVIS-BACON ACT, WAS APPLICABLE TO THE WORK INVOLVED IN FURNISHING THE CRAWLER-TRANSPORTERS UNDER THE CONTRACT. WE HAVE BEEN INFORMALLY ADVISED THAT THIS DETERMINATION WAS BASED ON THE FACT THAT SIMILAR MISSILE-CARRYING VEHICLES WERE FURNISHED UNDER ARMY AND AIR FORCE CONTRACTS CONTAINING WALSH-HEALEY ACT, RATHER THAN DAVIS-BACON ACT, PROVISIONS. SUCH ARMY AND AIR FORCE VEHICLES, WE ARE INFORMED, ARE LARGE WHEELED MISSILE-CARRYING VEHICLES AND PERFORM SUBSTANTIALLY THE SAME FUNCTION AS THE CRAWLER-TRANSPORTERS HERE INVOLVED. HOWEVER, INSTEAD OF TRANSPORTING THE MISSILE IN A VERTICAL POSITION AS IN THE CRAWLER-TRANSPORTER, THE ARMY AND AIR FORCE VEHICLES HAVE BEEN USED AT REDSTONE ARSENAL, HUNTSVILLE, ALABAMA, TO TRANSPORT THE JUPITER ROCKET. THE AIR FORCE VEHICLES HAVE BEEN USED TO TRANSPORT THE TITAN AND ATLAS ROCKETS AT CAPE KENNEDY. WE HAVE ALSO BEEN INFORMED THAT NASA HAS HAD OTHER LARGE MISSILE-CARRYING VEHICLES BUILT UNDER WALSH HEALEY ACT CONTRACT PROVISIONS FOR TRANSPORTING THE SATURN V ROCKET IN A HORIZONTAL POSITION AT HUNTSVILLE, ALABAMA.

THE RESPONSIBILITY FOR DETERMINING WHETHER DAVIS-BACON ACT PROVISIONS SHOULD, OR SHOULD NOT, BE INCLUDED IN A PARTICULAR CONTRACT, AS IN THE CASE OF OTHER APPROPRIATE CONTRACTUAL PROVISIONS, RESTS PRIMARILY WITH THE CONTRACTING AGENCIES WHICH MUST AWARD, ADMINISTER AND ENFORCE THE CONTRACT. THE AGENCIES' DETERMINATION IN THIS REGARD SHOULD NOT BE LIGHTLY DISTURBED EITHER BY THE DEPARTMENT OF LABOR OR BY THIS OFFICE. HAS BEEN OBSERVED (40 COMP. GEN. 565) THAT THE AUTHORITY GIVEN TO THE SECRETARY OF LABOR UNDER REORGANIZATION PLAN NO. 14 OF 1950, 5 U.S.C. 133Z -15, TO "PRESCRIBE APPROPRIATE STANDARDS, REGULATIONS AND PROCEDURES" FOR THE PURPOSE OF ENSURING COORDINATION OF ADMINISTRATION AND CONSISTENCY OF ENFORCEMENT, DOES NOT EXTEND TO ACTUAL ADMINISTRATION AND ENFORCEMENT OF THE ACTS AFFECTED. SEE S.REP.NO. 1546, 81ST CONGRESS, WHERE, IN REPORTING FORMALLY ON THE PLAN, THE SENATE COMMITTEE ON EXPENDITURES IN THE EXECUTIVE DEPARTMENTS STATED: "THE ENFORCEMENT AND ADMINISTRATION OF LABOR STANDARDS ARE NOT TRANSFERRED BY THE PLAN BUT REMAIN VESTED IN THE INDIVIDUAL AGENCIES AND DEPARTMENTS OF THE GOVERNMENT.'

IN THE INSTANT CASE, IT WOULD APPEAR THAT THE CONTRACTING OFFICER MADE THE DETERMINATION NOT TO INCLUDE DAVIS-BACON ACT PROVISIONS IN THE MARION CONTRACT IN GOOD FAITH, AND ON THE BASIS OF PREVIOUS PRACTICE OF OTHER CONTRACTING AGENCIES IN PROCUREMENTS OF SIMILAR MISSILE-CARRYING VEHICLES, WHICH APPARENTLY DIFFER FROM THOSE UNDER CONSIDERATION ONLY IN PHYSICAL DIMENSIONS. MOREOVER, INSOFAR AS WE HAVE BEEN ABLE TO DETERMINE (NO CLEAR BASIS FOR THE SOLICITOR OF LABOR'S OPINION BEING STATED), IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER'S DETERMINATION WAS INCONSISTENT WITH APPLICABLE DEPARTMENT OF LABOR REGULATIONS. IT IS OUR UNDERSTANDING THAT THE DEPARTMENT OF LABOR HAS TAKEN NO STEPS TO IMPLEMENT THE OPINION STATED IN THE SOLICITOR'S LETTER. THAT LETTER WAS NOT EVEN DIRECTED TO NASA WHICH, AS THE CONTRACTING AGENCY, WOULD HAVE THE RESPONSIBILITY FOR IMPLEMENTATION, BUT WAS FURNISHED SOLELY FOR INFORMATIONAL PURPOSES. THEREFORE, REGARDLESS OF THE QUESTION CONCERNING THE CORRECTNESS OF THE OPINION STATED IN THE SOLICITOR'S LETTER, IT CAN BE SAID, AT MOST, THAT SUCH LETTER HAS ONLY ADVISORY FORCE AND NO ACTION IS REQUIRED TO BE TAKEN BY NASA IN ACCORDANCE THEREWITH.

THE PROVISIONS OF THE DAVIS-BACON ACT ARE NOT OF THEMSELVES BINDING UPON A CONTRACTOR BUT ARE EFFECTIVE ONLY WHEN THEY ARE INCLUDED IN THE SPECIFICATIONS WHICH ARE BID UPON AND ULTIMATELY INCORPORATED INTO THE CONTRACT. 40 COMP. GEN. 565. SEE, ALSO, 20 COMP. GEN. 890 RELATING TO THE EIGHT HOUR LAW, 40 U.S.C. 321, AND 20 ID. 931 RELATING TO THE WALSH HEALEY ACT. IN 40 COMP. GEN. 565, WE HELD THAT A FAILURE TO INCLUDE MINIMUM WAGE PROVISIONS IN A CONTRACT, EVEN ASSUMING THAT THEY PROPERLY SHOULD HAVE BEEN INCLUDED, CANNOT BE CURED RETROACTIVELY. ONCE SUCH WAGE PROVISIONS ARE INITIALLY INCLUDED, HOWEVER, IT IS NOT OBJECTIONABLE TO CORRECT WAGE RATES IN INSTANCES WHERE THEY HAVE CONTAINED INADVERTENT CLERICAL ERRORS. SEE, ALSO, SECTION 504 (C) OF THE DEPARTMENT OF LABOR REGULATIONS, 29 F.R. 100. ADDITIONALLY, IT WAS FURTHER OBSERVED IN 40 COMP. GEN. 565 THAT:

* * * WHILE WE MIGHT AGREE THAT THE PUBLIC POLICY MANIFEST IN THE PROVISIONS OF THE DAVIS-BACON ACT WARRANTS CANCELLATION AND READVERTISEMENT, IF FEASIBLE, OF WORK AWARDED WITHOUT CLEARLY APPLICABLE CONDITIONS, NO CORRECTIVE ACTION WOULD APPEAR POSSIBLE WHERE, DUE TO SUBSTANTIAL COMPLETION OF THE WORK OR OTHER PRACTICAL CONSIDERATIONS, IT IS NOT REASONABLE TO CANCEL AND READVERTISE.

EVEN IF WE ASSUME, ARGUENDO, THAT THE SOLICITOR OF LABOR'S OPINION ON THE APPLICABILITY OF THE DAVIS-BACON ACT IS CORRECT, WHICH BECAUSE OF THE GENERAL CHARACTER OF THE CONTRACT CONSIDERED AS A WHOLE WE SERIOUSLY QUESTION, WE THINK THAT THE RATIONALE STATED IN 40 COMP. GEN. 565 WITH RESPECT TO THE CIRCUMSTANCES UNDER WHICH A CONTRACT MAY BE CANCELED AND READVERTISED FULLY APPLIES TO THE QUESTION AT HAND. APPLYING THAT DECISION TO THE FACTS OF THIS CASE WE MUST CONCLUDE THAT AMENDMENT OF THE MARION CONTRACT TO INCORPORATE DAVIS-BACON ACT PROVISIONS WOULD NOT BE LEGALLY AUTHORIZED UNDER GENERAL CONTRACT LAW. OUR CONCLUSION IS SUPPORTED BY THE FOLLOWING CONSIDERATIONS.

FIRST, AS NOTED PREVIOUSLY, WE HAVE SERIOUS DOUBTS WHETHER THE CONTRACT WORK IS OF A NATURE REQUIRING DAVIS-BACON ACT COVERAGE. WE NEED NOT, AND DO NOT, DECIDE THIS QUESTION, HOWEVER, SINCE THE VIEW WE TAKE OF THIS CASE REQUIRES NO DECISION ON THAT QUESTION. IT IS ENOUGH TO SAY THAT, IN OUR OPINION, THE DAVIS-BACON ACT PROVISIONS ARE NOT "CLEARLY APPLICABLE.' THE AMENDMENT OF A CONTRACT TO INCORPORATE DAVIS-BACON ACT PROVISIONS WHICH HAVE BEEN PREVIOUSLY DETERMINED BY THE PROCURING AGENCY IN GOOD FAITH AND ON REASONABLE GROUNDS TO BE INAPPLICABLE WOULD BE OF DOUBTFUL LEGALITY EVEN WHERE SUCH PROVISIONS ARE CLEARLY APPLICABLE. A FORTIORI, WHEN THEIR APPLICABILITY IS DOUBTFUL, A CONTRACT SHOULD NOT BE AMENDED FOR THE PURPOSE OF INCORPORATING THEM.

SECONDLY, WE THINK THAT IT WOULD BE UNREASONABLE TO AMEND THE MARION CONTRACT AT THIS LATE DATE, EVEN IF THE DAVIS-BACON ACT WERE CLEARLY APPLICABLE, SINCE THE CONTRACT WORK APPEARS TO HAVE BEEN SUBSTANTIALLY COMPLETED. ALSO, AS YOUR DRAFT LETTER OF DECEMBER 21, 1964, POINTS OUT, DAVIS-BACON ACT COVERAGE WOULD RESULT IN SUBSTANTIAL ADDITIONAL COSTS TO THE GOVERNMENT UNDER THE MARION CONTRACT AND WOULD ENTAIL SLIPPAGE IN THE APOLLO PROGRAM OF 14 WEEKS WHICH COULD BE OF SERIOUS MOMENT TO THE NATION. IN THAT CONNECTION, IT IS OUR UNDERSTANDING, AND THE ITEMIZED BREAKDOWN SET FORTH IN MARION'S PROPOSAL SO INDICATES, THAT MOST OF THE ADDITIONAL COST IN CHANGING OVER TO DAVIS-BACON ACT COVERAGE WOULD NOT BE CAUSED BY INCREASED WAGE RATES OF THE LABORERS AND MECHANICS EMPLOYED, BUT WOULD RESULT FROM THE TRAINING OF NEW WORKERS TO DO THE WORK AND COSTS INCIDENT TO DELAY OF THE WORK. IT IS OUR UNDERSTANDING FURTHER THAT MARION'S PROPOSAL DOES NOT INCLUDE AN ADJUSTMENT TO THE INCENTIVE FEE WHICH, IN ALL PROBABILITY, WOULD BE INSISTED UPON BY MARION. ADDITIONALLY, THE DOLLAR EFFECT OF SLIPPAGE IN THE APOLLO PROGRAM, IT IS STATED, COULD BE MANY MULTIPLES OF THE DOLLAR IMPACT ESTIMATED FOR THE MARION CONTRACT ITSELF.

THIRDLY, PERHAPS IT SHOULD BE EMPHASIZED SINCE THE POINT IS OFTEN OVERLOOKED, THE DAVIS-BACON ACT IS NOT A JURISDICTIONAL DISPUTE SETTLEMENT STATUTE. NOWHERE WITHIN ITS PROVISIONS DOES THE ACT SPECIFY THAT WORK COVERED BY ITS MINIMUM WAGE PROVISIONS MUST BE PERFORMED BY BUILDING TRADE OR CRAFT WORKERS AS DISTINGUISHED FROM INDUSTRIAL WORKERS. ALL THAT THE ACT REQUIRES IS THAT THE LABORERS AND MECHANICS, WHOEVER THEY MAY BE, ACTUALLY EMPLOYED ON THE SITE OF PROJECTS UNDER CONTRACTS CONTAINING MINIMUM WAGE PROVISIONS SHALL RECEIVE THE FULL AMOUNTS ACCRUED AT TIME OF PAYMENT, COMPUTED AT WAGE RATES NOT LESS THAN THOSE STATED IN THE ADVERTISED SPECIFICATIONS. THUS, EVEN IF IT WERE DETERMINED THAT THE DAVIS-BACON ACT APPLIED TO THE WORK INVOLVED IN THE MARION CONTRACT AND THAT THE CONTRACT COULD AND SHOULD BE AMENDED TO INCLUDE ITS PROVISIONS, MARION WOULD NOT APPEAR TO BE IN VIOLATION OF THE ACT IF IT EMPLOYED ITS OWN INDUSTRIAL LABORERS AND MECHANICS ON THE ASSEMBLY WORK, SO LONG AS THOSE LABORERS AND MECHANICS RECEIVED THE STIPULATED MINIMUM WAGES. THUS, THERE IS NO SUPPORT IN THE DAVIS-BACON ACT ITSELF FOR THE CONTENTION OF THE INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS THAT ITS MEMBERS NECESSARILY HAVE JURISDICTION OVER WORK WHICH IS SUBJECT TO THE ACT. FROM A STRICTLY LEGAL STANDPOINT, THEREFORE, AMENDMENT OF THE MARION CONTRACT TO INCLUDE DAVIS-BACON ACT COVERAGE WOULD NOT FURNISH A BASIS FOR REQUIRING MARION TO EMPLOY A BUILDING TRADE OR CRAFT WORKERS AND, THUS, WOULD NOT NECESSARILY RESULT IN LABOR PEACE AT THE CAPE. ALSO, AS NOTED PREVIOUSLY, IT IS REPORTED THERE IS A REAL POSSIBILITY THAT AMENDMENT OF THE CONTRACT AND REASSIGNMENT OF THE WORK TO CRAFT WORKERS MIGHT RESULT IN A STRIKE BY THE UNITED STEEL WORKERS AT CAPE KENNEDY AND/OR THE MARION PLANT. THESE LATTER CONSIDERATIONS, IN OUR OPINION, MERELY POINT UP THE DIFFICULTIES INHERENT IN ATTEMPTS TO RESOLVE JURISDICTIONAL DISPUTES BY MEANS OF A STATUTE NOT DESIGNED, NOR INTENDED, FOR SUCH PURPOSE.

IN VIEW OF THE FOREGOING CONSIDERATIONS WE MUST CONCLUDE THAT THERE IS NO LEGAL BASIS FOR OVERTURNING THE GOOD-FAITH DETERMINATION OF THE CONTRACTING OFFICER THAT THE DAVIS-BACON ACT IS NOT APPLICABLE TO THE WORK COVERED BY THE MARION CONTRACT, AND THAT THE CONTRACT MAY NOT BE AMENDED UNDER THE LAWS AND REGULATIONS GENERALLY APPLICABLE TO CONTRACT ADMINISTRATION, TO INCORPORATE THE ACT'S PROVISIONS.

IN VIEW OF THE NATURE OF THE DEPUTY ASSOCIATE ADMINISTRATOR'S REQUEST, WE EXPRESS NO OPINION ON WHETHER THE CONTRACT MAY PROPERLY BE AMENDED UNDER THE PROVISIONS OF PUBLIC LAW 85-804, 50 U.S.C. 1431.