BERKELEY COUNTY PUBLIC SEWER DISTRICT, WAB Case No. 83-16 (WAB July 16, 1984)
CCASE:
BERKELEY COUNTY PUBLIC
DDATE:
19840716
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of
BERKELEY COUNTY PUBLIC WAB Case No. 83-16
SEWER DISTRICT
Wage Rates for Baker Heights Dated: July 16, 1984
Contract BK-1, Public Service
Sewer District, Berkeley
County, W.V.
EPA Project 540393
APPEARANCES: Dr. L. Walter Fix, Chairman, Berkeley County Public
Service Sewer District
Eleanor J. Lauderdale, Esquire, Gail V. Coleman,
Esquire for the Wage and Hour Division, U.S.
Department of Labor
Terry R. Yellig, Esquire for Building and
Construction Trades Department, AFL-CIO
BEFORE: Alvin Bramow, Chairman, Stuart Rothman, Member,
Gresham C. Smith, Alternate Member /FN1/
DECISION OF THE WAGE APPEALS BOARD
This case is before the Wage Appeals Board on the petition
of Berkeley County Public Service Sewer District in West Virginia
to review the October 27, 1983 ruling by the Administrator of
the Wage and Hour Division that a wage determination issued
March 11, 1983, was applicable to contract bids opened March 21,
1983, since 10 days had elapsed from the date of issuance. [1]
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/FN1/ Member Thomas X. Dunn withdrew from consideration of this
appeal and did not participate in the decision. [1]
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[2] Pursuant to a grant from the United States Environmental
Protection Agency (hereinafter EPA) the Berkeley County Public
Service Sewer District (hereinafter the District) proceeded to
make plans to construct a new sewer system. The project was
advertised for bids with the then current wage rates included
in the specifications. On March 11, 1983, a new wage determination
containing generally higher wage rates was issued by publication in
the Federal Register of that date. It appears that EPA did not
inform the District of the new wage rates until their letter dated
June 6, 1983, almost 30 days after the new determination was
issued. Bids for the new sewer system were opened at 4:00 p.m.,
March 21, 1983 using the old wage rates which were part of the
specifications. In November, 1983, the contract was awarded to the
low bidder.
After being made aware that the wage rates in the bid
specifications were not the current rates, the District sought a
variation from the new rates from the Wage and Hour Administrator.
The Administrator denied the variation in October, 1983, finding
under the regulations that the new wage rates were applicable to
the contract. The District then argued to the Administrator that
the variation was not required because on a procedural basis
the revised wage rates had not been published in the Federal
Register within the time period specified in the regulations.
On October 26, 1983, the Administrator determined that the new
wage rates had been published at least 10 days in advance of [2]
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[3] the bid opening and that in accordance with 29 CFR, Part 1,
Section 1.7(b)(2), the superseding wage decision should have been
made a part of the contract specifications. It is from this
decision that the District appealed to the Wage Appeals Board on
December 5, 1983 by filing a Petition for Review.
The District's argument is based on the fact that bids for
the project were opened 9 days and 16 hours after issuance of
the superseding wage determination by its calculations. The
District's interpretation of the Department of Labor's Regulations,
29 CFR [sec] 1.7(b)(2), is that the new wage rates are not
required to be used until 10 days after publication in the Federal
Register and it was therefore proper to award the contract for
the sewer system with the original wage determination and rates.
The Wage and Hour Division argues that under the applicable
regulation, the District had 10 calendar days after publication
of the new wage determination and before the bids were opened.
As a result, the District was obliged to use the superseding
wage determination. In addition, Wage and Hour points out that
the regulation also requires utilization of a modifying wage
decision even during the 10 day period after issuance unless
the contracting agency makes a specific finding that there is
not sufficient time for the District to notify its bidders of
the new wage rates. The EPA made no such finding in this case.
Therefore, according to the Wage and Hour Division, the District
had no alternative but to apply the new wage determination. [3]
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[4] The Wage Appeals Board considered this appeal on the basis
of the Petition for Review filed by the District, the record
of the case before the Wage and Hour Division, a brief for the
Administrator filed by the Solicitor of Labor and a brief for
the Building and Construction Trades Department, AFL-CIO. On
May 21, 1984, the Board held a hearing on this appeal at which
all interested persons were present and participated.
The Board has reviewed the undisputed facts of this case
along with the Department's Regulation, 29 CFR [sec] 1.7(b)(2),
which provides in part as follows:
All actions modifying a general wage determination shall
be applicable thereto, but modifications published in the
Federal Register [*] later than 10 days before the opening of
bids [*] shall not be effective, except when the Federal
agency finds that there is a reasonable time in which
to notify bidders of the modification . . . [*] (Emphasis
added) [*]
Where an act is required to be done within a specific number
of days "before" an event, the general rule requires the number
of days to be computed by excluding the day on which the act
is done and including the day on which the event is to occur. /FN2/
The facts reveal that the modification was published in the
Federal Register on March 11, 1983. Applying the general rule,
excluding the first day, March 11th, computation would begin on
March 12th and the tenth day would be March 21st. The petitioner
has contended that as bids were opened at 4:00 p.m. on March
21st [4]
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/FN2/ See 74 Am. Jur. 2d TIME, [sec] 24, 98 ALR 2d 1331, 1361 [sec]
7 and cases cited therein. [4]
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[5] that only 9 days and 16 hours elapsed and not a full 10 days as
required by the regulation.
The Board disagrees with the petitioner's interpretation of
the 10 day rule set forth in 29 CFR [sec] 1.7(b)(2). The
petitioner has failed to cite any authorities for its position,
whereas the leading cases concerning the measurement of time either
conflict with or reject such an argument. /FN3/ Since the
modification was published on March 11, 1983 and bids were opened
on March 21, 1983, the petitioner had 10 days in time and must
apply the modification to the contract.
The Board finds it unnecessary to reach the issue and makes
no ruling as to whether a Federal agency must make an appropriate
finding that there was no reasonable time in which to notify
bidders of the modification when such modification is made less
than 10 days prior to bid opening. It would hold no precedent
for the future for the Board to rule since the language contained
in 29 CFR [sec] 1.7(b)(2) has been revised. /FN4/
The petitioner further questioned whether the wage rates
contained in the wage determination were actually those prevailing
in the locality. The Chairman of the Board ruled at the oral
hearing that since the matter had not been raised with the [5]
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/FN3/ Burnet v. Willingham L. & T. Co., 282 U.S. 437 (1939) and
Bulldog Concrete Forms Sales Corp. v. Taylor 195 F.2d 417 (7th Cir.
1952).
/FN4/ The section relating to use and effectiveness of wage
determinations was revised effective June 28, 1983 and the
pertin[e]nt regulation is set forth in 29 CFR [sec]
1.6(c)(3)(i). [5]
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[6] Administrator of Wage and Hour for reconsideration prior to
appeal and the contract had been awarded, an appeal of this issue
would not be timely.
In view of the foregoing, the decision of the Administrator
is affirmed and the petition is hereby dismissed.
BY ORDER OF THE BOARD
Craig Bulger,
Executive Secretary,
Wage Appeals Board [6]
