B-154253, SEP. 9, 1966

B-154253, SEP. 9, 1966

TO PROFESSOR HAROLD C. PETROWITZ:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 18, 1966, REQUESTING RECONSIDERATION OF OUR DECISION OF DECEMBER 13, 1965, IN WHICH WE DENIED THE CLAIM OF YOUR CLIENT, THE IRBY CONSTRUCTION COMPANY, FOR MONEYS WITHHELD PURSUANT TO THE DAVIS-BACON ACT, 40 U.S.C. 276A, BY THE BUREAU OF RECLAMATION FROM PAYMENTS OTHERWISE DUE UNDER CONTRACT NO. 14-06-D-4259.

THE FACTS AND CIRCUMSTANCES INVOLVED IN YOUR CLAIM WERE SET FORTH IN CONSIDERABLE DETAIL IN OUR DECISION OF DECEMBER 31, 1965, AND WILL NOT BE RESTATED HERE UNLESS RELEVANT TO THE DISCUSSIONS THAT FOLLOW, WHICH WILL BE LIMITED TO NEW AND RELEVANT MATTERS NOT PREVIOUSLY COVERED IN THE DECISION.

BASICALLY, YOU CONTEND THAT THE DECISION OF DECEMBER 13, 1965 IS INCONSISTENT WITH OUR DECISION OF MARCH 1, 1966, B-157732, WHICH INVOLVED A CONTRACT FOR THE CONSTRUCTION OF A SMALL SEWAGE TREATMENT SYSTEM, AND IN WHICH THE WAGE RATE DECISION CONTAINED IN THE ADVERTISED SPECIFICATIONS DESCRIBED THE WORK AS:

"CONTRACT FOR HEAVY AND HIGHWAY AND BUILDING TYPE CONSTRUCTION - CONSTRUCTION OF APPROXIMATELY 4 MILES OILED SURFACE ACCESS ROAD, PARKING AREAS, COMFORT STATIONS, AND SHELTER HOUSES.'

THERE WAS NO MENTION IN SUCH DESCRIPTION THAT THE SPECIFIC CONTRACT WORK IN QUESTION WAS ACTUALLY THE CONSTRUCTION OF A SEWAGE TREATMENT SYSTEM. THAT DECISION CONTAINED WAGE RATES FOR TWO TYPES OF WORK. ONE SCHEDULE OF WAGE RATES WAS DESIGNATED AS APPLYING TO "BUILDING CONSTRUCTION; " THE OTHER SCHEDULE OF WAGE RATES WAS DESIGNATED AS APPLYING TO "HEAVY AND HIGHWAY CONSTRUCTION.' BOTH SCHEDULES CONTAINED CLASSIFICATIONS WHICH PERTAINED TO THE JOBS PERFORMED BY THE WORKMEN IN QUESTION. THE WAGE RATES DETERMINED TO BE PREVAILING FOR THE TYPE OF WORK DESIGNATED AS "HEAVY AND HIGHWAY CONSTRUCTION" WERE HIGHER THAN THOSE FOR THE TYPE OF WORK DESIGNATED AS "BUILDING CONSTRUCTION.' NEITHER THE INVITATION FOR BIDS NOR THE CONTRACT AS AWARDED CONTAINED ANY INDICATION AS TO WHICH SCHEDULE OF WAGE RATES WAS CONSIDERED TO BE APPLICABLE TO THE CONTRACT WORK. THE CONTRACTOR CONTENDED THAT THE LOWER "BUILDING CONSTRUCTION" RATES WERE PROPERLY APPLICABLE AND THAT HE HAD PREPARED HIS BID ON SUCH A BASIS.

WE HELD AS FOLLOWS:

"WHILE WE MUST THEREFORE AGREE THAT THE PREVAILING WAGE RATES FOR THE WORK IN QUESTION WERE THE RATES SET OUT UNDER THE HEADING "HEAVY AND HIGHWAY CONSTRUCTION," IT SEEMS REASONABLY CLEAR FROM THE RECORD THAT THE CONTRACTOR BASED HIS BID PRICE ON THE LOWER WAGE RATES SET OUT UNDER THE HEADING "BUILDING CONSTRUCTION," AND THAT HIS ASSUMPTION SUCH LOWER SCHEDULE OF WAGE RATES WAS APPLICABLE TO THE CONTRACT WORK WAS ATTRIBUTABLE TO THE FACT THAT, WHILE THE NATURE OF THE CONTEMPLATED WORK WAS SUCH AS TO REQUIRE THAT ONLY ONE SCHEDULE OF WAGE RATES COULD BE APPLICABLE THERETO, THE WAGE RATE DECISION INCLUDED IN THE IFB CONTAINED TWO SCHEDULES OF WAGE RATES, WITH NO INDICATION AS TO WHICH WAS APPLICABLE.

"NEITHER THE DAVIS-BACON ACT NOR ANY REGULATIONS ISSUED THEREUNDER SET FORTH THE DIFFERENCE BETWEEN "HEAVY AND HIGHWAY CONSTRUCTION" AND "BUILDING CONSTRUCTION," AND WHETHER A PARTICULAR PIECE OF CONSTRUCTION FALLS UNDER ONE OR THE OTHER IS TO BE DETERMINED BY THE LEVEL OF WAGES PAID ON SIMILAR PROJECTS IN THE AREA, WITH THE INITIAL DECISION ON THAT POINT BEING MADE BY THE CONTRACTING AGENCY. UNDER THE CIRCUMSTANCES, IT IS OUR VIEW THAT WHERE, AS HERE, AN IFB REQUESTS QUOTATIONS ON A PROJECT WHICH CALLS FOR A HIGH WAGE SCHEDULE APPLICABLE TO ONLY ONE PARTICULAR TYPE OF CONSTRUCTION, IT IS INCUMBENT UPON THE CONTRACTING OFFICER TO PREPARE HIS REQUEST TO THE SECRETARY OF LABOR FOR A DETERMINATION OF WAGE RATES IN SUCH A MANNER THAT THE WAGE RATE DETERMINATION AS ISSUED RELATES ONLY TO THE CONSTRUCTION IN QUESTION, OR WHERE SUCH A PROCEDURE IS NOT PRACTICABLE, AS WHERE A GENERAL WAGE DETERMINATION IS USED WHICH CONTAINS MORE THAN ONE SCHEDULE OF WAGE RATES, TO UNEQUIVOCABLY INDICATE IN THE IFB WHICH PARTICULAR WAGE SCHEDULE IS CONSIDERED APPLICABLE TO THE CONTRACT WORK.

"IN VIEW OF THE FOREGOING, AND SINCE SOUTHWESTERN'S INTERPRETATION OF THE WAGE RATE DETERMINATION CANNOT BE SAID TO HAVE BEEN ENTIRELY UNJUSTIFIED, THE MONEYS WITHHELD ON ACCOUNT OF ALLEGED UNDERPAYMENTS RESULTING FROM THE CONTRACTOR'S FOLLOWING THE "BUILDING CONSTRUCTION" SCHEDULE OF WAGE RATES RATHER THAN "HEAVY AND HIGHWAY CONSTRUCTION" SCHEDULE SHOULD BE RELEASED TO THE CONTRACTOR.'

THE DECISION OF DECEMBER 13, 1965, TO YOU, INVOLVED A CONTRACT FOR THE CONSTRUCTION OF AN ELECTRIC POWER TRANSMISSION LINE APPROXIMATELY 42 MILES IN LENGTH AND LOCATED PARTLY IN SAN JUAN COUNTY, NEW MEXICO, AND PARTLY IN MONTESUMA COUNTY, COLORADO. THIS PROJECT REPRESENTS A SEGMENT OF A 2,000 MILE BUREAU OF RECLAMATION ELECTRIC POWER TRANSMISSION LINE. THE WAGE RATE DECISIONS CONTAINED IN THE ADVERTISED SPECIFICATIONS WERE ISSUED SPECIFICALLY FOR THE 42 MILE SEGMENT IN QUESTION AND WERE SO TITLE. THERE WAS ONLY ONE SCHEDULE OF WAGE RATES, APPLICABLE TO THE STATE OF COLORADO AND THAT SCHEDULE CONTAINED THE WAGE RATES FOR MANY DIFFERENT CLASSIFICATIONS OF WORKERS. INCLUDED THEREIN WERE WAGE RATES FOR 3 DIFFERENT CLASSIFICATIONS OF IRONWORKERS (STRUCTURAL, ORNAMENTAL AND REINFORCING). ALSO INCLUDED WERE 4 LINE CONSTRUCTION CLASSIFICATIONS (LINEMEN, CABLE, HEAVY EQUIPMENT OPERATOR, AND GROUNDMEN).

THE CONTRACTOR CLASSIFIED AND PAID MEN ENGAGED IN TOWER ERECTION IN THE STATE OF COLORADO AS ,IRONWORKERS, STRUCTURAL," ALTHOUGH IT HAD BEEN DIRECTED BY THE ADMINISTRATIVE OFFICE TO CLASSIFY AND PAY THEM IN ACCORDANCE WITH THE "LINE CONSTRUCTION" GROUP OF CRAFTS. THE RECORD SHOWED THE EXCLUSIVE AND SUBSTANTIAL USE IN THE STATE OF COLORADO OF WORKMEN CLASSIFIED AND PAID IN ACCORDANCE WITH THE "LINE CONSTRUCTION" GROUP OF CRAFTS FOR THE ASSEMBLY AND ERECTION OF STEEL TOWERS FOR ELECTRIC TRANSMISSION AND SUBSTATION PURPOSES. SUCH EXCLUSIVE USE IN THE STATE OF COLORADO WAS WELL KNOWN IN THE AREA.

IT IS OUR UNDERSTANDING THAT IT IS OFTEN THE PRACTICE OF THE LABOR DEPARTMENT TO SUPPLY ADMINISTRATIVE AGENCIES WITH A FULL SCHEDULE OF WORK CLASSIFICATIONS, INCLUDING ANY CLASSIFICATION WHICH MIGHT CONCEIVABLY BE USED ON THE JOB. IT OFTEN OCCURS, THEREFORE, THAT DUE TO LATER DECISIONS OF THE CONTRACTOR ON HOW AND WHEN TO DO THE WORK THAT CERTAIN CLASSIFICATIONS BECOME SUPERFLUOUS. BUT THIS IS A RETROSPECTIVE DETERMINATION AND MUST BE DISTINGUISHED FROM A SITUATION ON WHICH CLASSIFICATIONS ARE INAPPROPRIATE WHEN INITIALLY PUT IN THE CONTRACT AND BEFORE ACTUAL WORK BEGINS. FOR EXAMPLE, IN YOUR CLIENT'S CASE, THE STRUCTURAL IRONWORKER CLASSIFICATION MIGHT ACTUALLY HAVE BEEN USED IF THE CONTRACTOR HAD DECIDED TO BUILD A BUILDING OF A TYPE INVOLVING WORK CUSTOMARILY PERFORMED IN THE AREA BY IRONWORKERS--- E.G., A PERMANENT MIXING PLANT, OR PERHAPS AN ACCESS BRIDGE. THE CONTRACTOR CHOSE ANOTHER METHOD TO OBTAIN CONCRETE WHICH MADE IT UNNECESSARY TO USE THE IRONWORKER, STRUCTURAL, CLASSIFICATION.

THEREFORE, IN VIEW OF THE BASIC DIFFERENCES DETAILED ABOVE WE MUST CONCLUDE THAT THERE IS NO INCONSISTENCY BETWEEN OUR DECISION OF MARCH 1, 1966, B-157732, AND THE ONE INVOLVING YOUR CLIENT, PARTICULARLY SINCE THERE IS NO SHOWING THAT YOUR CLIENT COMPUTED ITS BID PRICE ON THE BASIS OF PAYING IRONWORKER RATES TO MEN ERECTING THE TOWERS IN QUESTION OR THAT THERE WOULD HAVE BEEN ANY VALID BASIS FOR AN ASSUMPTION THAT SUCH ACTION WAS PROPER UNDER THE CIRCUMSTANCES.

ACCORDINGLY, UPON RECONSIDERING THE DECISION OF DECEMBER 13, 1965, DENIAL OF THE CLAIM MUST BE SUSTAINED.