/\, THE COMPTROLLER GENERAL

-DECISION A d OF THE UNITED STATES

OECISIO 9 ) WASHINGTON, D. C. 2054e

FILE: B-195283 DATE: September 21, 1979

MATTER OF: Irby Construction Company g ;D 4ex t r le yiem) /fVia 'Ior r d Aerate ai

IGEST:

Where Department of Labor, pursuant to"Disputes Concerning Labor Standards"clause, held that contractor had to payworkers who assembled steel towers "ground-men" wage rate rather than "laborers" wagerate since this was prevailing practice,GAO will not review decision in light ofholdings in S&E Contractors, Inc. v. UnitedStates, 406 U.S. 1, and Nello L. TeerCompany v. United States, 348 F. 2d 533.

By letter dated June 22, 1979, counsel for IrbyConstruction Company (Irby) requested that our Office,*review the March 16, 1979, decision of the Wage rd A,Appeals Board, United States Department of Labor (WAB 'PCase No. 78-9). The Board's decision affirmed a ruling 0by the Assistant Administrator, Wage and Hour DivisionQ-which held that workers, employed by Irby on a Bureauof Reclamation project, who assembled steel structuresused to carry electrical transmission lines had to bepaid the appropriate groundman rate from the "lineconstruction" classification rather than the laborer'srate as contended by -Irby.

The workers in dispute were employed under a con- vp*tract between Irby and the Bureau of Reclamation, 461(10United States Department of the Interior, for the con-struction of a 68-mile-long 230-KV transmission linerunning from the Davis Dam switchyard in Arizona toParker Dam switchyard in California. This contractwas subject to the Davis-Bacon Act, 40 U.S.C. § 276a

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(1976), and contained an appropriate wage deter-mination (Wage Decision No. AZ 75-5087) as requiredby the act. The wage determination, issued by theDepartment of Labor, listed the prevailing wagerates for and classifications of workers to beused on the above-mentioned project.

Irby classified and paid as "laborers, group 4"certain of its employees who assembled, on the ground,steel structures used for the carrying of transmissionlines. The Bureau of Reclamation advised Irby thatthe prevailing practice for the area in questionrequired that these employees be paid in accordancewith "line construction" classifications. By letterof November 10, 1976, Irby requested, pursuant to 29C.F.R. § 5.12, a ruling from the Department of Laborconcerning the classification of these employees. OnMarch 6, 1978, the Assistant Administrator, Wage andHour Division, issued the ruling referred to in theopening paragraph, which held that assembly and erec-tion of transmission line steel towers are performed bygroundmen under the "line construction" classificationsand not by laborers. The ruling explained that theprevailing practice for the area in question was topay these workers as groundmen rather than laborers.We note that at no time during these proceedings didIrby dispute the fact, as indicated by the record,that the prevailing practice was to pay these workersas groundmen rather than laborers.

Clause 9 of the contract's Labor Standards Provi-sions entitled "Disputes Concerning Labor Standards"provides as follows:

"Disputes arising out of the labor standardsprovisions of this contract shall be subjectto the Disputes clause except to the extentsuch disputes involve the meaning of classi-fications or wage rates contained in thewage determination decision of the Secretaryof Labor or the applicability of the laborprovisions of this contract which questionsshall be referred to the Secretary of Laborin accordance with the procedures of theDepartment of Labor."

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Also, clause l(d) of the contract's LaborStandards Provisions provides, in pertinent part,as follows:

* * * If the interested parties cannotagree on the proper classification orreclassification of a particular classof laborers or mechanics to be used, thecontracting officer shall submit the ques-tion, together with his recommendation, tothe Secretary of Labor for final determina-tion.*

We have held that where, as in the instant case,a contractor agrees to a contractual provisionwhich provides for referral of disputes to theSecretary of Labor for final determination, thecontractor, under 41 U.S.C. § 321 (1976), is boundby the decision rendered by the Secretary or hisrepresentative unless the decision was arbitrary,capricious, or unsupported by substantial evidence.See 51 Comp. Gen. 42 (1971) and 50 id. 103 (1970).Also, see 45 Comp. Gen. 318 (1965) and a companioncase, B-154253, December 13, 1965, both of whichinvolved the same type of dispute as is involvedin the present case, the latter decision involvingthe same contractor, Irby Construction Company.Subsequent to the above decisions, the SupremeCourt held in S&E Contractors, Inc. v. United States,406 U.S. 1 (1972), that absent bad faith or fraud,a final agency settlement or decision, renderedunder the Disputes clause, is not subject to furtheradministrative review. The ruling in S&E Contractorsis applicable to a final agency decision against acontractor. 52 Comp. Gen. 196 (1972). See alsoNello L. Teer v. United States, 348 F.2d 533 (Ct.C1. 1965), holding that a decision of the Secretaryof Labor resulting from a question considered underthe contract Disputes clause reserving the matterfor the Secretary of Labor is final and not subjectto review.

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In any event, whether the Wage Appeals Board'sdecision is final or may be appealed in accordancewith Wunderlich standards, it is clear that ourOffice may not review that determination as requestedby Irby.

Therefore, our Office will take no action onthe request.

Deputy Comptroller Generalof the United States