W.J. MENEFEE CONSTRUCTION CO., WAB No. 90-15 (WAB Aug. 11, 1993)
CCASE:
W.J. MENEFEE CONSTRUCTION CO.
DDATE:
19930811
TTEXT:
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[1] WAGE APPEALS BOARD
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.
In the Matter of:
W.J. MENEFEE WAB Case No. 90-15
CONSTRUCTION CO.
Project No. DACA 45-88-C-0113
Construction of B-2 Support
Facilities
Whiteman AFB, Missouri
BEFORE:/FN1/ Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
DATED: August 11, 1993
DECISION OF THE WAGE APPEALS BOARD
This matter is before the Wage Appeals Board on the petition
of W.J. Menefee Construction Co. ("Menefee" or "Petitioner") for
review of a January 10, 1990 ruling by the Acting Administrator of
the Wage and Hour Division (ruling confirmed in a May 25, 1990
letter by the Deputy Assistant Administrator to the contracting
agency in response to the agency's request for clarification). The
Acting Administrator determined that the prevailing wage
requirements of the Davis-Bacon Act apply to employees of a Menefee
subsidiary, MENCO Concrete Products ("MENCO") who work at MENCO's
concrete batch plant and deliver materials from the plant to the
project site one mile away. Menefee has also filed a petition for
review of the Acting Administrator's March 29, 1990 decision
regarding the appropriate wage rates for concrete plant personnel
and drivers. For the reasons set forth below, the petition for
review of the Acting Administrator's ruling regarding the
applicability of Davis-Bacon requirements to the MENCO workers is
granted, and the Acting Administrator's ruling is reversed. Given
our resolution of the coverage issue, the Board need not reach the
issue of the appropriateness of the wage rates. [1]
/FN1/ Member Anna Maria Farias took part in the December 17, 1992
oral argument in this case, but did not participate in this
decision. [1]
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[2] I. BACKGROUND
A. Factual background
Menefee is a general construction company engaged in
roadbuilding and the supply of rock and ready-mix materials for
contractors. MENCO is the ready-mix division of Menefee.
Menefee's principal place of business is in Sedalia, Missouri,
about 20 miles from Whiteman Air Force Base at Knob Noster,
Missouri. It is undisputed that Menefee and MENCO have been in
business for a number of years, and that MENCO as a supplier has in
the past provided materials to Whiteman AFB projects from a
facility at the home office.
This case centers on the decision to establish a MENCO ready-
mix facility about one mile from Whiteman AFB in Knob Noster (it is
without dispute that this decision was made in anticipation of
construction activity on B-2 support facilities at Whiteman AFB).
The first B-2 related contract was advertised on October 31, 1987;
the bids on that contract were opened on January 27, 1988, and the
contract was awarded to Western States Construction Company on
March 3, 1988. On May 1, 1987 -- six months before bids were
solicited on the first B-2 related contract -- Menefee entered into
a 5-year lease for a 10-acre site in Knob Noster for use as a
"concrete batch plant site and also an asphalt plant site with
aggregate stockpiles."
According to counsel for Menefee, a great deal of activity
took place in connection with the Knob Noster batch plant site in
the months preceding the opening of the first B-2 related bids on
January 27, 1988. Thus, between September 14 and October 8, 1987
the property was graded and more than 5,000 tons of crushed stone
were installed to establish the batch plant foundation. In
addition, the 10-acre site was fenced and water wells were dug to
assure a supply of water for the batch plant operation. Menefee's
negotiation for a batch plant resulted in a purchase order to
Contractors Supply Co. which was initially dated December 8, 1987
and revised on January 4, 1988, and accepted as revised on January
5, 1988. Menefee acquired six ready-mix delivery trucks at
$52,057.37 each in early January 1988. The financial commitment
prior to opening of the first bids, according to Menefee, included
"$1,500 for lease of the real estate, $43,800 for labor and
materials to prepare the plant site, $115,430 for acquisition of
the batch plant and $312,268 for the purchase of the ready-mix
trucks" (Statement of Petitioner in Response to Statement of the
Acting Administrator, at p. 3). The first sale from the batch
plant was made in July 1988.
The first bid Menefee submitted on a B-2 related contract was
opened on August 3, 1988; Menefee was the successful bidder, and
was awarded the contract on August 16, 1988. [2]
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[3] B. Procedural history
1. The Wage and Hour rulings
On July 31, 1989, the contracting officer's Request for
Opinion by the Secretary of Labor regarding the applicability of
Davis-Bacon requirements to the MENCO batch plant was routed by the
Kansas City District, U.S. Army Corps of Engineers, to the agency's
Office of the Chief Counsel. That office contacted Wage and Hour
by letter dated August 11, 1989.
a. The "site of the work" ruling
The Acting Administrator responded by issuing two rulings. In
the first ruling, issued by letter dated January 10, 1990 to Louis
A. Cornet, Office of the Chief of Engineers, the Acting
Administrator addressed whether the MENCO batch plant was subject
to Davis-Bacon requirements. The Acting Administrator stated that
the Corps of Engineers contracted with Menefee to construct asphalt
and concrete roads as part of the B-2 Support Program, and that
Menefee's contract was awarded and construction began in March
1988. She further stated that MENCO, a subsidiary of Menefee,
opened a concrete batch plant one mile from Whiteman AFB in July
1988, and that over 99% of the concrete produced at the plant has
been furnished to the B-2 program.
The Acting Administrator explained that 29 C.F.R. 5.2(l)(1)
defines the "site of the work" as the physical location where the
construction will remain when it is completed "or other nearby
property." She further explained that pursuant to 29 C.F.R.
5.2(l)(2), "batch plants are part of the site of work provided they
are dedicated exclusively or nearly so, to the performance of the
contract and are located in proximity to the actual construction
location that it would be reasonable to include them." MENCO's
batch plant, she stated, is in close proximity (one mile) to the
construction site, and is dedicated exclusively or nearly so to
producing concrete for the contract, since more than 99% of the
concrete produced has been furnished to the B-2 project.
Accordingly, the Acting Administrator concluded, the batch plant is
part of the site of work, and the MENCO employees "working at the
plant and hauling the concrete to the project site are covered by
the Davis-Bacon labor standards provisions." The Acting
Administrator stated that although Menefee said it intends to
operate the concrete plant and sell to the public after the B-2
project is completed, "coverage is determined on the basis of
actual sales, not the firm's intent" (citing United Construction
Company, Inc., WAB Case No. 82-10 (Jan. 14, 1983).
By letter dated February 6, 1990, the Corps of Engineers
requested clarification of the Acting Administrator's ruling
regarding the applicability of Davis-Bacon requirements to the
MENCO batch plant. An attachment to the Corps' letter corrected
some of the facts as stated in the Acting Administrator's [3]
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[4] ruling letter. Thus, the Corps noted that the contract referred to
in the ruling letter as having been awarded in March 1988 to
Menefee was actually awarded to Western States Construction
Company, and the Menefee contract was awarded in August 1988. The
Corps also made note of 29 C.F.R. 5.2(l)(3), which states that
"fabrication plants, batch plants, borrow pits, job headquarters,
tool yards, etc., of a commercial supplier or materialman which are
established by a supplier of materials for the project before the
opening of bids and not on the project site, are not included in
the 'site of the work' " (original emphasis). The Corps requested
clarification regarding the application of Section 5.2(l)(3) to the
facts of this case. The Corps also noted that the Acting
Administrator's ruling had not stated whether the MENCO plant is to
be considered part of the "site of the work" for only the Menefee
contract or for all B-2 related contracts. The Corps stated that
"[a]s of 1 February 1990, MENCO has supplied, or is currently
supplying, concrete on twelve contracts at [Whiteman AFB] . . . .
As indicated before many more contracts related to the basing of
the B-2 Bomber at Whiteman are anticipated into 1992."
The Deputy Assistant Administrator responded to the request
for clarification by letter dated May 25, 1990. He stated that
"[t]he fact that the batch plant was established prior to the bid
opening for the Menefee contract and did not exclusively serve the
Menefee contract does not change our determination of coverage.
The batch plant was opened after the project began and was used
exclusively to serve the B-2 support facilities project" (original
emphasis).
b. The wage rate ruling
By letter dated May 4, 1989, attorney James G. Baker requested
(on behalf of MENCO and Howard Ready Mixed Concrete Company
("Howard")) "reconsideration of Wage Decision No. MO89 /FN2/ as
applied to work by transit mix drivers and concrete mix plant
operating personnel at Whiteman Air Force Base, Johnson County,
Missouri." Baker stated that the wage determination was a
statewide wage determination, and was apparently based on contracts
between the Associated General Contractors of Missouri and various
labor unions. He stated that attached collective bargaining
agreements between Howard and Teamsters Local 534 and MENCO and
Teamsters Local 534 governed work in Johnson County and surrounding
counties; a third labor agreement between another company and
Teamsters Local 534, he added, also covers work in Johnson and
surrounding counties. Those three companies, he stated, are the
only unionized ready-mix dealers operating in Johnson County. He
stated that the wage determination should be amended to reflect the
rates in the three companies' collective bargaining agreements for
transit mix drivers and plant operating personnel. [4]
/FN2/ The Acting Administrator notes in the submissions to this
Board that the correct number of the wage determination applied in
this case is WD MO88-1. [4]
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[5] The Acting Administrator responded to the request for
reconsideration by letter dated March 29, 1990. She stated that in
the relevant wage determination the classifications and wage rates
for concrete mix plant operating personnel and ready-mix concrete
drivers are based on collective bargaining agreements between the
Associated General Contractors of Missouri, Inc. ("AGC") and Local
Union No. 101, International Union of Operating Engineers and
between the AGC and Joint Councils of Teamsters Nos. 13 and 56 of
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. She noted that Baker argued
that the collective bargaining agreement with Local Union. No. 534
of the Teamsters "more accurately reflects the prevailing wage rate
for central mix concrete plant personnel and transit mix drivers
and that those wage rates should be substituted for the wages rates
contained in [the relevant wage determination]." She stated,
however, that "such arguments may only be considered prior to
contract award. . . ." With respect to future work in Johnson
County, she added, "a survey may be appropriate."
2. The Midway Excavators decision
Menefee filed petitions with this Board for review of both
rulings made by the Acting Administrator. While these appeals were
pending, the United States Court of Appeals for the D.C. Circuit
issued its decision in Building and Construction Trades Department,
AFL-CIO v. United States Dep't of Labor, Wage Appeals Board (Midway
Excavators, Inc.) ("Midway Excavators"), 932 F.2d 985 (D.C. Cir.
May 17, 1991). The D.C. Circuit examined the Department of Labor's
definition of "construction" set forth at 29 C.F.R. 5.2(j), which
had encompassed within Davis-Bacon prevailing wage requirements
"... the transporting of materials and supplies to or from the
building or work by the employees of the construction contractor or
construction subcontractor . . . ." The court held that Section
5.2(j), "insofar as it includes off-site material delivery
truckdrivers in the [Davis-Bacon] Act's coverage, is invalid." The
court of appeals also specifically stated that it was not ruling on
the validity of the Department's site of work regulation -- 29
C.F.R. 5.2(l).
3. The Department of Labor's post-Midway Excavators
rulemaking activities
On July 18, 1991, the D.C. Circuit denied the petition for
rehearing and suggestion for rehearing en banc filed by the
Building and Construction Trades Department, AFL-CIO ("BCTD").
Neither the government nor the BCTD sought Supreme Court review.
The Acting Administrator requested that the Board refrain from
deciding Midway Excavators-related issues until the Department of
Labor had taken rulemaking action in response to the D.C. Circuit's
decision. [5]
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[6] On May 4, 1992 the Department of Labor issued an interim final
rule amending the definition of "construction" in 29 C.F.R. 5.2(j).
57 Fed. Reg. 19,204. The regulation was amended to eliminate the
provision of Section 5.2(j) that applied Davis-Bacon requirements
to ". . . the transporting of materials and supplies to or from the
building or work by the employees of the construction contractor or
construction subcontractor . . . ." In remarks accompanying the
interim final rule, the Department explained (Id. at
19,205-19,206):
Under this rule, those truck drivers who transport
materials to or from the "site of the work" would not be
covered for any time spent off-site, but would remain
covered for any time spent directly on the "site of the
work." Time spent transporting between the actual
construction location and a facility which is deemed a
part of the site of the work within the meaning of [29
C.F.R. 5.2(l)], and the materialman/supplier exception,
will continue to be applied as before.
On the same date, the Department also issued a notice of
proposed rulemaking and request for comments regarding the "site of
the work" definition at 29 C.F.R. 5.2(l). 57 Fed. Reg. 19,208. The
Department addressed two matters. First, the Department stated its
view that under Midway Excavators, "truck drivers who spend most of
their time off-site, as `site' is defined in the regulations, and
who come on-site only incidentally to deliver or pick up a load of
material and perform only those activities (such as loading,
unloading, waiting) that are essential to the delivery or hauling
of material to or from the site, should not be subject to the Act
even if they are employed by the construction contractor or
construction subcontractor." Id. at 19,209. On the other hand, the
Department added, "if truck drivers employed by a construction
contractor were to spend more than an incidental amount of time
`employed directly upon the site of the work', they should be
subject to the Act's protections for such time." (Emphasis
supplied.) Id. The Department proposed two options for determining
whether the time spent on the "site of the work" by a material
delivery truck driver employed by a contractor or subcontractor was
"incidental."
Second, the Department posed the question whether the
definition of "site of the work" in Section 5.2(l) should be
changed in light of the Midway Excavators decision. 57 Fed. Reg.
19,211. The Department stated (Id.):
Although the court went to some length to restrict its
decision to the particular facts in Midway, the court's
broad legal reasoning indicates that other traditional
coverage positions not directly at issue in Midway should
be carefully reexamined in light of Midway. The court's
statements, for example, that coverage is restricted in
a geographic sense to only those persons "employed
directly upon the site of the work" raise questions
concerning [6]
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[7] regulatory provisions that define the
"site of the work" in [sec] 5.2(l).
The Department requested comments on three issues (57 Fed. Reg.
19,211) (footnotes omitted):
(1) Is the regulatory definition of "site of the work" at
[sec] 5.2(l) viable or should it be revised, particularly
in paragraph (l)(2), which includes as a part of the
covered "site of the work" certain dedicated facilities
utilized by a covered construction contractor or
subcontractor that are not technically on the physical
site of the building or work under construction?
(2) If dedicated facilities should remain covered as part
of the "site," should truck drivers be covered for the
time spent hauling between such a dedicated facility and
the site of the actual construction?
(3) In light of Midway, would it be appropriate to
establish a maximum limit for the geographic proximity
test in [sec] 5.2(l)(1) and (2) of the site of the work
definition?
4. The positions of the parties in this case in light
of the Department's rulemaking activities
The Acting Administrator filed a supplemental statement in the
instant case on June 5, 1992. The Acting Administrator stated that
since neither the D.C. Circuit's decision in Midway Excavators nor
the Department's interim final regulation "affected the coverage of
work performed at a dedicated site or the hauling from a dedicated
site to the construction site, the activities at issue in the
instant case remain covered by the Davis-Bacon provisions pursuant
to valid regulations" of the Department (Supplemental Statement, at
p. 5). /FN3/ The Acting Administrator also argued that Petitioner
had contractually agreed to comply with the Department's regulatory
interpretations of Davis-Bacon requirements. She noted that the
labor standards provisions (see 29 C.F.R. 5.5) contained in [7]
/FN3/ While this matter was pending before the Board, counsel for
the Acting Administrator submitted to the Board a copy of a
post-Midway Excavators decision of the United States District Court
for the District of Columbia in Ball, Ball and Brosamer, Inc.,
Civil Action No. 91-3266 (CRR)(Aug. 18, 1992), appeal docketed Oct.
9, 1992 (D.C. Cir.). In that case the district court affirmed the
decision of the Wage Appeals Board in Ball, Ball and Brosamer,
Inc., WAB Case No. 90-18 (Nov. 29, 1990), that work done at a
dedicated gravel pit near a dam construction project was performed
on the "site of the work" for Davis-Bacon coverage purposes. In so
doing, the court applied the Department's "site of the work"
regulation (29 C.F.R. 5.2(l)) as a valid regulation, and also
determined that the contractor in that case had a contractual
obligation to pay prevailing wages. [7]
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[8] Petitioner's contract specify that "[a]ll laborers and
mechanics employed or working upon the site of the work" will be
paid the wages and fringe benefits listed in the wage determination
issued by the Secretary of Labor. 29 C.F.R. 5.5(a)(1). These
provisions further state that "[a]ll rulings and interpretations of
the Davis-Bacon and related Acts contained in 29 C.F.R. Parts 1, 3,
and 5 are herein incorporated by reference in this contract." 29
C.F.R. 5.5(a)(8). Accordingly, with respect to the time spent by
employees at the MENCO batch plant and hauling to the construction
site from the plant, Menefee agreed to pay Davis-Bacon rates for
such work since it came within the Secretary's authoritative
interpretations.
Menefee argued that the MENCO batch plant did not meet the
site of the work test set forth at 29 C.F.R. 5.2(l). Menefee
further argued that Section 5.2(l) was invalid in light of the D.C.
Circuit's decision in Midway Excavators.
In its supplemental statement, the BCTD concurred with the
Acting Administrator that Menefee's two petitions should be
dismissed.
II. DISCUSSION
A. The "site of the work" issue
This matter involves the application of the Department's "site
of the work" regulation -- 29 C.F.R. 5.2(l). Section 5.2(l) is a
duly promulgated regulation of the Department of Labor which was in
effect at the time MENCO supplied materials for the B-2 related
contracts and -- although the provision is the subject of a notice
of proposed rulemaking (see pp. 6-7, supra) and apparently is the
subject of ongoing litigation (see n.3, supra) -- remains in effect
to this day. As such, Section 5.2(l) is binding upon the Wage
Appeals Board. See, e.g., California Human Development Corp. v.
Brock, 762 F.2d 1044 (D.C. Cir. 1985) (Department of Labor's
actions must conform to its own regulations). Accordingly, we will
proceed with an analysis of whether the MENCO batch plant facility
is within the "site of the work" definition set forth in Section
5.2(l).
Section 5.2(l)(1) describes the "site of the work" as "limited
to the physical place or places where the construction called for
in the contract will remain when work on it has been completed and,
as discussed in paragraph (l)(2) of this section, other adjacent or
nearby property used by the contractor or subcontractor in such
construction which can reasonably be said to be included in the
`site.' " Section 5.2(l)(2) sets out a two-part test under which
fabrication plants, batch plants, tool yards and other facilities
are part of the "site of the work" if (1) "they are dedicated
exclusively, or nearly so, to performance of the contract or
project," and (2) they are "so located in proximity to the actual
construction location that it would be reasonable to include
them."[8]
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[9] Also pertinent to this case is Section 5.2(l)(3), which
specifies certain exemptions from the "site of the work"
definition. Section 5.2(l)(3) provides:
Not included in the "site of the work" are permanent home
offices, branch plant establishments, fabrication plants,
and tool yards of a contractor or subcontractor whose
locations and continuance in operation are determined
wholly without regard to a particular Federal or
federally assisted contract or project. [*] In addition,
fabrication plants, batch plants, borrow pits, job
headquarters, tool yards, etc., of a commercial supplier
or materialman which are established by a supplier of
materials for the project before opening of bids, and not
on the project site, are not included in the "site of the
work." Such permanent, previously established facilities
are not part of the "site of the work", even where the
operation for a period of time may be dedicated
exclusively, or nearly so, to the performance of a
contract.[*] [*](Emphasis supplied.)[*]
Thus, a batch plant which is "established by a supplier of
materials for the project before the opening of bids, and not on
the project site" is not part of the site of the work. This
exemption applies even when the operations at such a "permanent,
previously established" batch plant are dedicated for a period of
time to the performance of a Davis-Bacon contract.
It is undisputed that MENCO has a history that predates the
inception of the B-2 facilities construction program of supplying
materials to Whiteman AFB projects from a facility at the
Menefee/MENCO home office about 20 miles from Whiteman.
Furthermore, the record reveals that at the time the Corps of
Engineers requested clarification of the Acting Administrator's
coverage ruling in this matter, MENCO had supplied or was in the
process of supplying concrete on 12 contracts at Whiteman AFB
(Record, Tab E). It is also undisputed that Menefee entered into
the lease for MENCO's Knob Noster batch plant site several months
before the bid was opened for the first B-2 related contract, and
in those months preceding that first bid opening considerable sums
of money were spent (about $473,000) and considerable effort was
undertaken to prepare the MENCO batch plant site. Thus, a land
lease was entered, a batch plant and ready-mix trucks were
acquired, thousands of tons of crushed stone were installed, water
wells were dug and the 10-acre site was fenced. It is also
undisputed that the first sales from the MENCO batch plant occurred
in July 1988, after the opening of bids on the first B-2 related
contract.
A dispute arises, however, over whether MENCO's batch plant
facility in Knob Noster was "established . . . before opening of
bids" within the meaning of Section 5.2(l)(3). As noted earlier,
the Deputy Assistant Administrator responded to the Corps' request
for clarification by stating that "[t]he fact that [9]
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[10] the batch plant was established prior to the bid opening for the
Menefee contract and did not exclusively serve the Menefee contract does
not change our determination of coverage. The batch plant was opened
after the project began and was used exclusively to serve the B-2
support facilities project" [*](original emphasis)[*]./FN4/ The Deputy
Assistant Administrator's letter does not address the precise meaning of
the term "established . . . before opening of bids," and at oral
argument counsel for the Acting Administrator suggested that this may be
a case of first impression regarding the interpretation of the term
"established" as used in Section 5.2(l)(3). Counsel for the Acting
Administrator also suggested that the term "established" essentially
means "open for business," but acknowledged that Wage and Hour has not
addressed precisely what "open for business" means. Counsel for the
Acting Administrator also argued that at most MENCO was "in the process
of establishing" the batch plant facility at the time the bids on the
first B-2 contract were opened. Counsel for Petitioner, on the other
hand, argued that the financial commitment made and the other efforts
undertaken serve as objective, tangible indicia that demonstrate that
the MENCO batch plant was "established" within the meaning of Section
5.2(l)(3) before the bids on any B-2 related contract were opened.
Upon review of the record and of the arguments made in this
case, the Board concludes that the MENCO batch plant facility in
Knob Noster comes within the exemption from the "site of the work"
set forth in Section 5.2(l)(3), since it was "established by a
supplier of materials for the project before opening of bids." The
Board in this case is without the benefit of a dispositive
interpretation by the Administrator of the term "established," and
it is critical that the instant decision not be taken as effort to
define that term for all time or to specify how that term should be
applied to all cases. Suffice it to say that in the circumstances
of this case, where MENCO has a history as a supplier of materials
in the Knob Noster area, it would be unreasonable to conclude that
the efforts undertaken in the several months preceding the opening
of bids -- the leasing of the batch plant site, the equipment
acquired and the extensive measures taken to prepare the site --
are inadequate to demonstrate that the batch plant was "established
. . . before opening of bids." /FN5/ This is not to say that such
efforts would be sufficient in all cases; where, for example, an
enterprise does not have a record of experience as a bona fide
supplier or materialman in the geographic area of a Davis-Bacon
project, it may well be reasonable to require that enterprise [10]
/FN4/ The Deputy Assistant Administrator's statement that the plant
opened after the project began may be based on the Corps' statement
in its request for clarification that "MENCO" opened a batch plant
one mile from Whiteman in July 1988" (Record, Tab E). As noted
above, it is not disputed that the first sales from the MENCO batch
plant occurred in July 1988.
/FN5/ Cf. W.J. Bokus Excavating, Inc., WAB Case No. 89-21 (July 23,
1993)(the Board affirmed the ALJ's rejection of a materialman
exemption for a contractor who did not enter into an agreement to
use a borrow pit for a road project until five days after bids were
opened and the contractor learned that it was the low bidder). [10]
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[11] to demonstrate that it was "open for business" or had made
sales from the facility before the opening of bids. Our
consideration of the circumstances of this case, however, leads the
Board to conclude that the requirement that a facility be
"established . . . before opening of bids" is met here. /FN6/
B. The wage rate issue
Since the Board has concluded that the MENCO batch plant is
not part of the "site of the work," we need not address the issue
of the appropriate wage rates for the batch plant personnel and the
ready-mix truck drivers. We do note that the Acting Administrator
-- focusing on the date of the award of the first contract to
Menefee -- argues that the May 4, 1989 letter challenging the wage
rates for those workers is an untimely challenge, since it was made
after award of that contract. However, the record shows that this
case involves 12 separate contracts under which MENCO supplied
materials, and counsel for Petitioner stated at oral argument that
monies were being withheld under all 12 contracts. The record also
reveals that although the May 4, 1989 letter challenging the wage
rates was submitted after the dates of award for 8 of those
contracts, the letter is dated before the dates of award for the
remaining 4 contracts. Thus, it is not at all clear that the
challenge to the wage rates was untimely with respect to those 4
contracts.
In sum, the ruling of the Acting Administrator on the "site of
the work" issue is reversed; the petition for review of the Acting
Administrator's ruling on the wage rates for the batch plant
personnel and ready-mix drivers is dismissed as moot.
BY ORDER OF THE BOARD:
Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Gerald F. Krizan, Esq.
Executive Secretary [11]
/FN6/ Counsel for the Acting Administrator also argues that the
MENCO batch plant was not a "permanent" facility within the meaning
of Section 5.2(l)(3). Counsel for Petitioner responds that the
concrete batch plant was installed as a permanent facility. In our
view, the same factors (that is, MENCO's history as a supplier in
the area) that support the conclusion that the batch plant was
established before the opening of bids on the first B-2 contract
also enhance the presumption that the batch plant is a "permanent"
facility. [11]
