Case Information
*1 OFFICE OFTHE A~ORNEY GENERAL OFTEXAS
AUSTIN
a.ruLo~- kH.Xlea-
tfonoroblr, Weaver 8. Baker, Chaiman
Board of Control
i\ustin, Tsxas
Sear Sir:
na of Article when through ake fist8 at bstween the ontrol and the pr0~id~ r0r Your Letter and the encloauros enumerated revealed ,the rouowing ruots:
(1) The speoiriaations mda by you on rhloh %ord Conetruction Company baaed its bid oontained the follo*sfn%
[1] .
-5onorable :;eavur ii. hkzr, page 2
*L;sJ:.H ;i;;* ,I: I:Y;i>, L.;iTy:
“The provisions of the prevailing wage law, Ii. 8. 30. M, Chapter 4b, Aots or the iiceular Semion of the Bortp-thtrd b@slature will be In etreot on this aontract. The stipulated pro- railing rate or per Diem wages for thls contract 15: “Per hour
aClass ntr* Iv+**
a*** I)**.
“Ploatarers $l.W n+** Contruotor ahull r0rreit 8s a penalty to Jtote ten ($13.00) dollars ros suoh laborer,
workma or meohanle employed, ior eaah calendar day, or portion thereof, such laborer, mrkmen, meohaaio ia paid less than the mid stipulated rates for any work done under said oontrnct, by him, or by any suboontraotor under him.* (2) By letter dated Pobruary 4, 1942, the looal tinion SO, 183, 00tiri0a the imte Board 0r Labor Flnsterers’ Statlstlc6 thst the prevailing rate Or wage6 tOr journey.neu plasterers would be lnareased $1.50 per hour to $1.75 per hour on oontracte entered into after April 12, 1942.
The Local’8 letter stated that the 81.50 rate had been mln- talned for four increased living oosts (4) year*, but thnt neceeoltnted the raise. The letter was reoelved by the Bureau 0r Labor %atiatics on February 17, 1842. Looal 783, arriiiatea with the American yederatfon of Labor, olaims Jurisdlotlon of
Honorable ieaves ii. RciiWr, page 3
the rollowing countirrr Travis, %StTOP, Bass, LaJWasas, Bayette, Les, Blanoo, Burnett, Caldwell, ~lll~anaoa, Llano, hi Saba, and Dell.
(3) on April let berorr the emotive aato at tbe above rarerred to tioreaso, the Boreao of Labor Stetirtios in the Austin area to deter&m contacted numerous oontraotors ii ths Inorease was aoaeptable to then, All r6plies received to inqulrirs lndloated the lnoreared rate was scoeptable and no raplies were recoivsd to the oontrarr. Lett6rswrrr rm- amired iron a number of oontraatorr whose asMe are ret out fn tha letter Comtalosioner of thr Buseau oi Labor that ths lnoreaseb rate8 wera agmeablr to timmr Statistios, kiowrver, idoor Coaetruatioo Company doeln’t appear 08 aaid the ravorable replies to It8 inquiry, list. Atter reoelring the Bureau or Labor Statfstfos 31.75 per hour aa the prevailing wage soalo ior oorrected its iils to reflect
journeymen plasterers.
(4) Your letter stated that you railed rewire the Aotiae nalled you by the Bureau of Labor 6tatiotlas as to the increased scale 0r pay 0r plasterer8 snd you, therrrore, set up the rate of $1.60 in your speoliioations on the oontraot later awarded to Moore Construction Company.
(5) The letter mm SioosCOAStrUatiOA COrnpSA~ to you 5tated that it was not notified at any time prior to 8fgAin6 the coAtraot Hap 22, 1942, by the Labor Board, the plastererr’. any other SgSAOy, oonoer~ing the inorsased
repressAtativ0, until Mar 22, 1942, when said raot rata of pay oi plasterera was called to it8 attention by the plasterers’ representative.
After aheaking with the State Labor Board, Moore Constructloo Company paid said prevailing waee, and now requests the Board of Control to remunerate it for the lncreaeed amount paid it above the amount set out in the speolfioa- plastarers u&aT tioas oontraot, together with the additional coat of in- suranoo required and a lO$ profit oa said inoressed amounta,
Under the above raotr taken rrom four latter aad en- O~~SUCO~, you propound to us three questions as rollowrr
“1. UAdeT the tsots herein submitted and RS shown by the attaohed file, in the light or law this titato, do we owe c(ooro Conrtruotion Company on room repairs to the State Capitol OA above de- soribed oontract, dated J&y 22, 1942, tha sum or 91609.10 for 6422 hours of labor for plasterers
Bonorable :ieaver 8. Btiksr, page 4
paid an addltional Zb# per hour for work pariorned by them on said job ovw and above the $1.50 par hour set out in the oclntraot.
“2. Are we bound pay for the item or lnsuranoe aet out in suoh rtatement of $225.277
“3. Are we bound to pay the 8183.44 profit by &ore Construction Company in view alatied of the hate and law above oubmittsd?” It is noted that both the rpeoiflaation for bide into with aore Construction Company and the oontrmt entered the provisions or Artiole 3169a, Vornon’tt Annotated eet out that Civil Statutes, would be in eifeot on this ooatraat. Artiole 5159a, V.A.C.8.. providea a5 r0~lowat
‘580. 1. Not leas than the general prevailing rate at per diem wages tot work of 8 aiixilar tsr in the locality ohnrao-
in whloh the work is performd, and not leas than the general prevailing r<lce of per diem wages for legal holiday and overtime wo.rb, shall be paid to all laborers, workmen and wohan~aa a- ployed on bahali af State oi Texas, or by or on behalf of any county, oity and oounty, city, town, district
or other political 6ubdSviai.m of the
State, engaged In the construction of public worke, exalustve of maintenance work. Laborerr, worknen and meohanice employed oontraotora or euboontraotore in the exeeutlon of any oontraot or oontrnots for pub- lie works with the State, or any ofricer or publia body thereof, or in the execution 0r any oontruot or 0ontract.e tor publia worka, with any county, oity and oounty; oity, town, dlstriot, other politloaL subdivision or thle State, any otflaer publla body thereof, shall be deemed to be employed upon publlo works.
“3Jgo. 2. The publio body awarding any oontraot for publio work on behalf of the State, or on behalf or any county, alty county, city, town, dlatriot or other politioal rubdivision thereof, or otherwise undertaking any publie work, shull aeoertaia the general prevaillcg rate or par diem wages ln the looality in which the work 18 to be performed for *5 Ekmorable fleatar Ii. Sakes, page 4
each aratt or type of workman or meohania aesded to exeaute the oontrattt, and 8hall speoify tn the call for bids ior said oontraot, and in the eon- traot itaalf, what the general prevailin rate of per diem wage8 in the 8ai4 looality ir for eaah
oratt or type ot workman nerded to l rooute the con- traat, al8o the prevailing rate for legal holiday anti orertfmo work, and it shall be mandatory upon to whom the aontraot fr awarded, and the oontraotor upon any 8uboontraator under him, pay not 1088 than ma14 8peoifie4 rater to all laborer8, work- men and meohanior employend by them in the exeoution 0r the aontraot. aontraotor shall forfeit a8 8 penalty to the State, Oounty, oitf and oountf,
oitf, town, dlatrlct othar politioel eubdivf8lon on whose behalf the oontraot Ii! mrrdia or awarded, Ten &Llar# (@J.OO) for each laborer, workman, or machanio portion thereor, employed, ior eaoh calendar day a IO paid lea8 than suah laborer, workman or ~eohan 1 said rrtlpulated rates for any work done under aaid aontraat, by him, bf any auboontraotor under hira, and the said publio body awarding the oontraot shall aause to be inserted
in the oontraot a etipula- tion to thin effeot. It shall be the duty of ruoh publio body awarding the oontraot, and it8 agent8 and oiriaerr, to take aognlzanoe or aonplaints of ‘I I all violatlona o? the provlpllons ot this Act aom- aitted in the course of the execution or the oontraot, and, when rnisklng paymntato the eontractor or monier bemaing due undor said contraot, to withhold and re- tain therefrom all aicaa and e,munte which shall have been forieited pursuant to the herein said etipula- tion the terms oi thie not; provided, however, that no 8uta 8hall be 80 withheld, retained or for- felted, except the tinal puyrsent without a rull investigation by the awarding body. ft shall be law- ful for any oontractor to withhold from any auboontrao- tor under him suffioient 8ume to oover any penaltler withh4ld irota him the awarding body on aooount of to oomplp with the the said nubaontraator’s tailum ternu of thlr hot, and if payaent ha8 already been awl6 to him the aontraator may recover rrons him the amount of the penalty or iorfelture In a ruit at law.
*Sea. 3. The ooatraotor and each ouboontraotor rball keep, oause to be kept, an aoourete reoord ehowing the mm%8 and oaaupatlonr of all laborerr, *6 IIonorable ,r'iesver Ii. i3akar, PUBS 6
worknan and msohsnics employed by him, in aonneo- tion with the raid pub110 work, and showing also the aotual per diem wages paid to each of suoh
workers, whloh record shall be open at all reason- able hour8 to the inspection of tb pub110 body
awarding the contract, It8 officers and agentl.
Veo. 4. Any oonetruotion or repair work dons under contraot, and paid for in whole or in part out of pub110 fund8, other than work done any publi0 utility
dir8Otly 008ipar~y pUr8Ufh to order of the Railroad Co1mlr8lon or other pubb- lio authority, whether or not don8 Under pub110 supervl8lon or direstion,
or paid for wholly or in part out or publio funds, ehall bs held to ba 'pub110 works’ within the ,msaning of thir Act. The tern 'looality in whloh the work is performed*
shall be held to 5eean the oounby, city and oounty, other polltlonl oity, town, district subdlrislon of this State in whioh the building, highway, road, sxoavation, other 8tructun, project, deoelop- ment or Lmproremeat 18 8itUdOd. in all oa8e8 in
whiah the oontreat is awarded by the State, or any pub110 body thereof, and shall bo held to mean the limit8 of tha county, oity and aounty, oity,
town, dlstrlot or other polltloal subdlolslons on wkosr behalf the OOutraOt I8 awarded in all other CaSe8.
The term 'general prevailing rate of psr diem wages' shall be the rate dotermlnsd upon a8 such rate by the pub110 body awarding the oontraot, or authoriz- ln$ the work, whose dsolslon in ths matter shall be tinaL. Nothing in this Bat, however, shall be con- strued to prohibit the paymsnt to any laborer, work- man meohanlo employed on any publio work aa afore- 8aid ot mqre than the said general prevailing rate Aot being penal prOYi8iOn8
Section8 6 and d of said are 08rrled a8 Hrtiole lB81a 0S the Penal Code and prorlde a8 tO11OW8 3 agent reprssenta-
*'Yea. 5. Any oiflosr, tire OS the State or any Polltlosl subdlvlelon,
dlstriot or munlo~palitg theroof, who wllfully
shall violatr,or omit to oomplf with, any of the *7 8’75 ' .honordbls ::savcr 8. Dakur, page 7 provl8ionr of thir Aot, and any OOntrSJOtOr or
suboontraotor, or agent or representative thereof, doing publio work a8 aforeraid, who shall hegleot keep, cause to be kept, an acourate reoord OS n3xe8, occupation and actual wages paid to each laborer, workman and n%chanIo employed him in oouneotion with the 8aId pub110 work, or who shall refuse
to allow &00%%8 to 8a:ae at any r%aIon- able hour to any person authorizsd to’ lnspeot aarc under thir Act, rha11 be guilty of a inI8d4meanor, and ugon oon?iotion shall be punished by a fine of not exo%eding Plve Hundred Dollar8 $SOO.OO), or by impri8oIment for not %rc%%ding six 6) months, by I
both such fine imprisonment, in th% di8Or4tiOQ of the Co*a.rt.
*SW. 6. If any eeotioa, 84ntenc4, otause or part of thI8 Aot Is for any rea8on held to bs uh- OOIl8titUtiOIld suoh d4Oi6lOn rha11 Ilot affeot th4 remalnihg portion8 of this Act. The Legislature hereby deOlare8 that It would hilve passed thls Act, and each motion, sentenoe, clause, part thereof, irr48p4otIv% 0S the foot thet one or more 84ctloa8, 8entenc48, clauses part8 thereof be deolared
unoonst ltut ional.”
ThI8 Aot ha8 been 00n8tZ?Fndc;; the Texas Court8 in the following oase81 southern &i oanr *. Rsnnels, 119’ 8. w. (24) 0061 Awin Brldue CO~~ehll v. TeaRUe, 149 s. W. (2d) Erla& Oomuaar 'I. Teauue. lS2 S. W. (24) 1091; 674; EUIQ AU8tin in whioh t ;he 8UDlWilS Court reVsr8sd the -judgmnt or th%CourtV of Civil Appeal; in~the aame Oa84.
The above QecIsionr are not helpful to u8 in th18 imvtanoe because they involve faot 8ituatIone entirely difrer- ent those presented hare.
In the ~oUthemPri8on Company Oa84 th6 public body awarding ths wxk never made any determination of the prerail- ing wags scale for the type of work done by plaintlfi,
In the Austin Bridge Coiepany 488% there wa8 a oon- trorerey a8 to whether the type of work don6 the plaintiff was 8killed or unskillQa labor.
honorable Sje~avcr H. Bakar, page 5
Ih the fLI8tant 0884, we are confronted by a mutual alstake of fact made the State 2okrJrd of Control and the hfoore Construotion Compehy a8 the prorsllIn$ wag0 scale ior plasterer8.
The oontract entered into between them 8at out that the provision8 or House Bill 54, Chapter 45, Acts oi the Be- gular &melon of the Borty-third Legirlature, (Artiole 5159a, V.A. 0. 8.. and Artiole 155la, Penal Code) would be la @Meat on the oontraot. Both parti to the oontract were bound by 8aId hot &ore COnstrUotlOn Co!qm~y paid the pretaillng rate on ascertaining what it wa8.
It is %lem%ntsry that whsre there 18 a mutual uils- a oontraot will be r%iormed to express the take or faot that intent of the partie8, eraspt when rights of third per- true tie8 twre Intsrvened, and in 808% other ihstsnCs8 not involrea here. rule 18 8tated 10 “RELfTATE-i?X;T OP TifS I&# OF
CONTRACTS,” Vol. 2, page 968, Section 504, a8 ~ollowor
n* * * where both parties have an ldentloal intention ce to the terrm to be embodied la a propoasa written oonveyanos, assignment, oon- traot or disohmge, and a writing eseoutsd by thea la materially at variance with that inten- tion, either party oan get a dears% that the writing shall be raformed so that It shall ex- press the intention oi the parties, ii innooent third parsons will hot be unfairly afr%Oted thsre- by. *
Prom the above, It 18 apparent that our an8wer to your first qu48tlon ir that the State Board of Control is su- thorlzed to pay Moore Construction Coxpsuy the sum OS #1,809.10 being an additional twenty-five (28#) cent8 per hour for hour8 oi labor plastererl, 8am having besn paid said plaeter- er8 aocordi.ag to the letter from Moore Construction Company in addition to the 31.50 r hour pmvlded In the oontroot and $ said total psyment of *1.75 per hour being ths rsoognizsa pm- railing wage scale for plasterers In this vloinlty.
The amwer to tour second queetlon in aontrolled by tho answer to the first quecrtloa. The Board of Control is authorized to pay the amount of additional insurance paid the contraotor whloh wan ooOasioned by auld oontraotor paying the prevailing wage aoalo prosoribed by law instead ot the bwar raalo eet out in the aontraot*
Our anawor to your third quo&ion ID that the Board ia not authorized to pay tea (lO$) per oent profit or Control on two above rororred tho additional to itomr, naavlyr amount paid tho plastererr an4 addltioaal insuranoo pal4 oooarlonod tho higher r&o of pay, baoauao tho Oontcaot ln- valved hero was not a Ooet ~1~8 oontroot, no atandardlr are ret up in ram to ebow how prof itr aro to be arrived at, oten to show that tho oontraotor oxpeotod to make a aaah proiit on thla traaeaotion.
Idew tines oontraotr era made without erpeotation or oash prorlt Ln order to koop regular vmrkmon miploged, to obtain future business, oto.
The Itema whioh we have hold subjeot to pIpOAt hero wero pald by tho oozitraotor in oonplfanoo with Ststo law. ltmn of ten per oent (lop) profit on maid paymenta doer
not tall within this oatogory,
Very truly youra, ATTORNEY GiNERAL OF TEXAS