|
<![CDATA[
CCASE:
MOBILE BAY HIGHWAY BRIDGE
DDATE:
19771021
TTEXT:
~1
[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
MOBILE BAY HIGHWAY BRIDGE WAB Case No. 77-02
Interstate Project No. I-65-1(85)23,
Mobile and Baldwin Cos., Alabama Dated: October 21, 1977
APPEARANCES:
Thomas G. Greaves, Jr., Esquire
for Petitioners and the Alabama
Highway Department and the
Alabama Road Builders Association
Thomas X. Dunn, Esquire,
Terry Yellig, Esquire
for Building and Construction
Trades Department, AFL-CIO
George E. Rivers, Esquire,
Douglas Davidson, Esquire
for the Wage and Hour Division,
U.S. Department of Labor
Before: Alfred L. Ganna, Chairman, William T. Evans, Member,
Thomas Phelan, Member
DECISION OF THE WAGE APPEALS BOARD
Prior to the start of the formal hearing of this case the
Board noted that a Motion to Dismiss the Petition for Review was
filed on behalf of the Building and Construction Trades Department,
AFL-CIO, on the grounds that the Petition was moot since [1]
~2
[2] the bids had been opened and the contract awarded prior to the
hearing.
After hearing all parties wishing to comment on the motion,
the Board took the matter under advisement and proceeded with the
hearing. It now appears that there is substantial merit to the
Motion to Dismiss because the Board is without authority to direct
that the contract in question here be relet or that any other
action be taken with respect to that contract. Such action can
only be initiated by the parties themselves and must be done in
accordance with the applicable procurement statutes. The Board has
determined, however, that it would be appropriate to provide
guidance based upon the facts of this case since it is apparent
that there will be problems similar to this one arising in the
future and that such guidance may serve to minimize these problems.
This case is before the Wage Appeals Board on the petition of
five general contractors who bid upon the contract for construction
of Federal Aid Interstate Project No. I-65-1(85)23, in Mobile and
Baldwin Counties, Alabama. The petitioners, and intervenors
Alabama Highway Department and Alabama Road Builders Association,
are seeking review of the Assistant Administrator's wage
determination No. 77-AL-45, dated January 25, 1977. This wage
determination was applicable to the aforementioned Interstate [2]
~3
[3] project to construct dual bridges to carry I-65 over the
Mobile River and Little Lizard Creek in the eastern part of Mobile
County and the western part of Baldwin County, Alabama. A hearing
on this matter was held on August 31, 1977, pursuant to the Board's
Notice of Hearing and all interested parties were represented at
the hearing.
Contract I-65-1(85)23 is one of three contracts for
construction of two-lane dual bridges across the Mobile River Delta
in Mobile and Baldwin counties. The entire structure will be
approximately 6.1 miles long. The segment to be constructed under
I-65-1(85)23 will be 1.702 miles long at an estimated cost of
$55-65 million. The structure will cross two navigable streams:
the Mobile River and Little Lizard Creek. Vertical clearance over
the Mobile River is 125 feet and horizontal clearance is 450 feet.
Over Little Lizard Creek, vertical clearance is 42.5 feet and
horizontal clearance is 100 feet. This segment includes an 800
foot tied arch span, and the substructure includes two-column
reinforced concrete piers, steel foundation piles and pre-stressed
concrete foundation piles. The remaining 8,157 feet of this
segment are approach spans and a 450 foot span across Little Lizard
Creek.
In Wage Decision No. 77-AL-45 applicable to this project the
Department of Labor issued highway rates for the approach spans and
the span over Little Lizard Creek, and issued heavy rates for [3]
~4
[4] the 800 foot tied arch span across the Mobile River. The
highway rates may be characterized as non-negotiated rates which
the Department of Labor has determined to prevail on highway
construction in Mobile and Baldwin counties. The heavy rates are
primarily negotiated rates based on a Department of Labor survey of
heavy construction in Mobile County. Bids for this project were
opened on February 4, 1977, the contract was awarded on March 11,
1977, and work began on or about April 11, 1977.
The petitioners object to the wage decision on a variety of
grounds, but primarily they contend that for the past 20 years
bridges of varying heights and lengths have been built in Alabama
and particularly in Mobile County using only highway wage rates.
Secondly, the petitioners object that wages being paid on an
$80,000,000 bridge very near to the subject project in Mobile
County, Project I-10-1(35), (herein I-10) and wage rate information
from two other bridges in Mobile County: the Theodore Industrial
Terminal Canal bridge and a bridge over the Intercoastal Waterway
at Gulf Shores were not considered by the Wage and Hour Division in
determining the wage minimums applicable to the project in
question. For the purpose of showing past history the Alabama
Highway Department advised the Wage and Hour Division of eight
other large bridges that had been built in Alabama between 1969 and
1975. These bridges ranged in cost from $3,900,000 [4]
~5
[5] to $16,200,000. The petitioners contend that since all the
aforementioned bridges were built at the highway construction
rates, these are the wage rates that should apply to all of the
construction of the I-65 bridge, not just the approaches.
The Department of Labor characterized the tied arch span of
this project as heavy construction and issued wage rates which
resulted from a recent survey of various heavy construction
projects in Mobile County. This survey included wage rate
information from eight railroad construction projects, nine dock or
waterfront construction projects, three industrial site
construction projects, one dam repair, three duct bank projects and
a few unrelated miscellaneous projects. The Department
specifically rejected wage data from the I-10 bridge project
because it had been awarded using the highway wage rates. The
Department contended that these rates should not be considered in
connection with that portion of this project which it characterized
as heavy construction and for this reason declined to consider the
payroll data in its survey.
The Building and Construction Trades Department, AFL-CIO,
has supported the position of the Department of Labor. The
Associated General Contractors of America, the Associated Builders
and Contractors of America, Inc., the Federal Highway
Administration, and the American Road and Transportation Builders
Association have supported the petitioners' position. [5]
~6
[6] It is the view of the Wage Appeals Board that the wage rates
issued in Wage Decision No. 77-AL-45 for the tied arch span over
the Mobile River did not reflect wages prevailing on similar
construction in Mobile and Baldwin Counties. It appears to the
Board that the projects used as the basis for the wage rates
determined to be prevailing for the heavy portion of the contract
are not projects of a character similar, except in the broadest
sense of the term. This has particular significance when there are
three very similar bridge projects located in Mobile County. With
reference to the Department's exclusion of these bridges from the
survey, the Department cannot be allowed to disregard wage rate
data from the bridges, as the record shows it did with respect to
I-10, because it disagreed with the use of the highway wage
determination by the State Highway Department. It seems to the
Board that when the Department gave contracting agencies the right
to obtain the required wage determinations from the Federal
Register and to exercise their judgment as to the appropriate
schedule for a particular project, the Department should give due
weight to the agency's decision.
Furthermore, it appears to the Board that in this project, as
in most bridges, there are elements of both highway and heavy
construction contained in the contract. Since the contract falls
into a questionable area between heavy construction and highway [6]
~7
[7] construction it would have been appropriate for the
Department to look to the three bridges recently or currently under
construction in Mobile County to determine the prevailing wage
rates from them. This would be more consistent with the past
practices of the Department with regard to bridges, dams, dredging
and flood control projects than to have based its determination on
a survey of numerous unrelated and dissimilar heavy construction
projects as was done in this case.
In view of these findings, the Assistant Administrator is
directed to issue a new wage determination to the Alabama Highway
Department as soon as possible. The new determination should
reflect the wages and payment practices found prevailing on bridge
construction in Mobile and Baldwin counties in conformity with
this decision.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary
Wage Appeals Board [] [7]
]]>
|
