B-4763, AUGUST 24, 1939, 19 COMP. GEN. 267

B-4763, AUGUST 24, 1939, 19 COMP. GEN. 267

CONTRACTS - LABOR, ETC., STIPULATIONS - OVERLAPPING OF EIGHT-HOUR LAW AND WALSH-HEALEY ACT APPLICATION - NONINCLUSION OF EIGHT-HOUR LAW PROVISIONS WHILE THE FIELD OF APPLICATION OF THE LABOR, ETC., PROVISIONS OF THE WALSH-HEALEY ACT OF JUNE 30, 1936, 49 STAT. 2036, AND THE EIGHT-HOUR LAW OF JUNE 19, 1912, 37 STAT. 137, IS SUBSTANTIALLY DIFFERENT--- THE FORMER RELATING TO CONTRACTS INVOLVING THE MANUFACTURING OR FURNISHING OF SUPPLIES, ARTICLES, ETC., WHILE THE LATTER RELATES TO CONTRACTS FOR THE PERFORMANCE OF SERVICES; THE CONSTRUCTION, REPAIR, ETC., OF PUBLIC BUILDINGS; ETC.--- WHERE THE FIELD OF APPLICATION OVERLAPS, AND THE PROVISIONS OF THE WALSH-HEALEY ACT ARE CLEARLY APPLICABLE TO COMPLETE PERFORMANCE OF THE CONTRACT, THE PROVISIONS OF THE EARLIER EIGHT-HOUR LAW SHOULD NOT BE INCLUDED IN THE CONTRACT.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF LABOR, AUGUST 24, 1939:

THERE HAS BEEN RECEIVED FROM THE ADMINISTRATOR, DIVISION OF PUBLIC CONTRACTS OF YOUR DEPARTMENT, A LETTER OF JUNE 28, 1939, AS FOLLOWS:

A QUESTION HAS BEEN PRESENTED TO THIS OFFICE REGARDING THE APPARENT CONFLICT BETWEEN THE PROVISIONS OF THE EIGHT-HOUR LAW OF JUNE 19, 1912 (37 STAT. 137) AND THE PUBLIC CONTRACTS ACT (49 STAT. 2036). IN ACCORDANCE WITH THE TERMS OF THE EIGHT-HOUR LAW, THE WAR DEPARTMENT HAS INCLUDED THE STIPULATION OF THAT LAW AS WELL AS THE REPRESENTATIONS AND STIPULATIONS REQUIRED TO BE INCLUDED UNDER THE TERMS OF THE PUBLIC CONTRACTS ACT IN INVITATIONS FOR BIDS CALLING FOR BIDS FOR THE MANUFACTURE AND FURNISHING OF CERTAIN EQUIPMENT REQUIRED BY THAT DEPARTMENT IN THE NATIONAL DEFENSE PROGRAM. SEVERAL PROSPECTIVE CONTRACTORS HAVE REFUSED TO SUBMIT BIDS IF THE CONTRACTS MUST BE SUBJECT TO THE PROVISIONS OF THE EIGHT-HOUR LAW.

ALTHOUGH MOST CONTRACTS FOR MATERIALS, SUPPLIES, ARTICLES, OR EQUIPMENT THAT ARE SUBJECT TO THE PUBLIC CONTRACTS ACT ARE EXEMPT FROM THE EIGHT- HOUR LAW UNDER THE OPINIONS OF THE ATTORNEY GENERAL INTERPRETING THE SCOPE AND APPLICATION OF THIS ACT, THERE ARE, HOWEVER, CERTAIN POINTS OF CONFLICT BETWEEN THE TWO STATUTES.

THE EIGHT-HOUR LAW REQUIRES A STRICT OBSERVANCE OF AN EIGHT-HOUR DAY, WHEREAS THE PUBLIC CONTRACTS ACT PROVIDES NOT ONLY FOR THE EIGHT HOUR DAY BUT ALSO PROVIDES THAT "THE SECRETARY OF LABOR MAY PROVIDE REASONABLE LIMITATIONS AND MAY MAKE RULES AND REGULATIONS ALLOWING REASONABLE VARIATIONS, TOLERANCES, AND EXEMPTIONS TO AND FROM ANY OR ALL PROVISIONS OF THIS ACT RESPECTING MINIMUM RATES OF PAY AND MAXIMUM HOURS OF LABOR OR THE EXTENT OF THE APPLICATION OF THIS ACT TO CONTRACTORS, AS HEREINBEFORE DESCRIBED. WHENEVER THE SECRETARY OF LABOR SHALL PERMIT AN INCREASE IN THE MAXIMUM HOURS OF LABOR STIPULATED IN THE CONTRACT, HE SHALL SET A RATE OF PAY FOR ANY OVERTIME, WHICH RATE SHALL BE NOT LESS THAN ONE AND ONE- HALF TIMES THE BASIC HOURLY RATE RECEIVED BY ANY EMPLOYEES AFFECTED.' UNDER THIS EXPRESS AUTHORIZATION OF CONGRESS, THE SECRETARY OF LABOR HAS GRANTED A BLANKET PERMISSION FOR OVERTIME UPON THE PAYMENT OF TIME AND ONE -HALF THE REGULAR RATE OF PAY ( REGULATIONS OF THE SECRETARY OF LABOR NO. 504, ARTICLE 103).

THE GENERAL DOCTRINE OF LAW CONCERNING THE CONSTRUCTION OF STATUTES IN CONFLICT WITH EACH OTHER HAS BEEN WELL ESTABLISHED. THIS DOCTRINE IS IN BRIEF THAT WHERE TWO LEGISLATIVE ACTS ARE REPUGNANT TO EACH OTHER, THE ONE LAST PASSED, BEING THE LATEST EXPRESSION OF THE LEGISLATIVE WILL, ALTHOUGH IT CONTAINS NO REPEALING CLAUSE, WILL GOVERN, CONTROL, OR PREVAIL SO AS TO SUPERSEDE AND IMPLIEDLY REPEAL THE EARLIER ACT TO THE EXTENT OF THE REPUGNANCY. IN ACCORDANCE WITH THIS RULE OF LAW, IT IS THE OPINION OF THIS DEPARTMENT THAT THE PUBLIC CONTRACTS ACT SHOULD BE HELD TO HAVE SUPERSEDED AND REPEALED, BY IMPLICATION, THE EIGHT-HOUR LAW. CONSEQUENTLY, ANY CONTRACT THAT IS SUBJECT TO THE PROVISIONS OF THE PUBLIC CONTRACTS ACT SHOULD NOT BE HELD TO BE SUBJECT TO THE EIGHT-HOUR LAW OF 1912.

IT IS REQUESTED THAT YOU CONSIDER THE RESPECTIVE PROVISIONS OF THE TWO STATUTES AND GIVE YOUR OPINION AS TO WHETHER THE INTERPRETATION OF THIS DEPARTMENT, WHICH IS IN LINE WITH COURT DECISIONS, CAN BE FOLLOWED IN THIS AND FUTURE CASES.

THE EIGHT-HOUR LAW OF JUNE 19, 1912, 37 STAT. 137, PROVIDES GENERALLY THAT LABORERS AND MECHANICS SHALL NEITHER BE REQUIRED NOR PERMITTED TO WORK MORE THAN 8 HOURS IN ANY 1 CALENDAR DAY ON GOVERNMENT CONTRACT WORK, BUT THERE ARE SPECIFICALLY EXCEPTED FROM ITS TERMS CONTRACTS FOR THE PURCHASE OF SUPPLIES FOR THE GOVERNMENT, OR FOR SUCH MATERIALS OR ARTICLES AS MAY USUALLY BE PURCHASED IN THE OPEN MARKET. IN THE CONSTRUCTION OF THIS ACT THERE HAVE BEEN EXEMPTED CONTRACTS FOR ALL CLASSES AND CHARACTERS OF SUPPLIES, ARTICLES, AND MATERIALS, FROM TWINE AND PAPER BOXES TO DYNAMOS AND LOCOMOTIVES. SEE 29 OP. ATTY. GEN. 505; 30 ID. 24; ID. 31; ID. 49. ON THE OTHER HAND, THE PROVISIONS OF THE WALSH-HEALEY ACT, 49 STAT. 2036, APPLY EXCLUSIVELY TO CONTRACTS IN EXCESS OF $10,000 IN AMOUNT "FOR THE MANUFACTURE OR FURNISHING OF MATERIALS, SUPPLIES, ARTICLES, AND EQUIPMENT.' THUS, IT WILL BE SEEN THAT, AS A GENERAL PROPOSITION, SUBJECT TO CERTAIN EXCEPTIONS, THE TWO ACTS PRIMARILY RELATE TO DIFFERENT CLASSES OF CONTRACTS; THE ONE TO CONTRACTS FOR THE PERFORMANCE OF SERVICES, THE CONSTRUCTION, REPAIR, ETC., OF PUBLIC BUILDINGS AND PUBLIC WORKS, AND THOSE WHICH REQUIRE SUBSTANTIAL EMPLOYMENT OF LABORERS AND MECHANICS IN ADDITION TO THE FURNISHING OF ARTICLES OR EQUIPMENT (18 COMP. GEN. 672), WHILE THE OTHER RELATES SOLELY TO MANUFACTURING OR FURNISHING SUPPLIES, ARTICLES, ETC.

IN THE ADMINISTRATOR'S LETTER OF JUNE 28, 1939, SUPRA, IT IS STATED THAT, ALTHOUGH MOST CONTRACTS SUBJECT TO THE WALSH-HEALEY ACT ARE EXEMPT FROM THE EIGHT-HOUR LAW, IT IS THE OPINION OF THE DEPARTMENT OF LABOR THAT THE WALSH-HEALEY ACT SHOULD BE CONSIDERED AS HAVING REPEALED THE EIGHT-HOUR LAW IN THOSE CASES WHERE BOTH ACTS APPARENTLY ARE APPLICABLE. THE ADMINISTRATOR HAS NOT INDICATED THE TYPES OF CONTRACTS AS TO WHICH IT IS CONSIDERED THAT THE TWO ACTS ARE IN CONFLICT, OR OVERLAP, I.E., AS TO WHICH BOTH APPARENTLY APPLY IF SEPARATELY CONSTRUED. THIS SITUATION MIGHT BE PRESENTED, HOWEVER, IN THE CASE OF A CONTRACT EXCEEDING $10,000 FOR DELIVERY OF ARTICLES OR MATERIALS NOT USUALLY PROCURABLE IN THE OPEN MARKET. UNDER SUCH CIRCUMSTANCES, AND TO THE EXTENT THAT THE TWO ACTS MAY BE IN CONFLICT, OR OVERLAP, I AM IN ACCORD WITH THE VIEW OF THE DEPARTMENT OF LABOR. CONSEQUENTLY, WHEN THE PROVISIONS OF THE WALSH-HEALEY ACT ARE CLEARLY APPLICABLE TO COMPLETE PERFORMANCE OF THE CONTRACT, THE PROVISIONS OF THE EIGHT-HOUR LAW SHOULD NOT BE INCLUDED IN THE CONTRACT, ALTHOUGH, BUT FOR THE ENACTMENT OF THE WALSH-HEALEY ACT, THE EIGHT-HOUR LAW WOULD HAVE BEEN APPLICABLE.

WHETHER THE WAR DEPARTMENT'S INVITATION TO BID, TO WHICH REFERENCE IS MADE IN THE ABOVE-QUOTED LETTER, CONTEMPLATES A CONTRACT AS TO WHICH ONE OR THE OTHER OF THE TWO ACTS IS APPLICABLE OR INAPPLICABLE IS A MATTER AS TO WHICH I EXPRESS NO OPINION SINCE A COPY OF THE INVITATION TO BID HAS NOT BEEN FURNISHED AND I HAVE NOT BEEN APPRISED OF THE BIDDING TERMS AND CONDITIONS, O* THE NATURE AND SCOPE OF THE PROPOSED CONTRACT.