
    H. B. ZACHRY COMPANY v. THE UNITED STATES
    [No. 332-61.
    Decided April 16, 1965]
    
      Chester H. Johnson and O. D. Hite for plaintiff. Robert J. Bird and George TP. Krog of counsel. ■
    
      
      Edwin J. Reis, with whom was Assistant Attorney General John W. Douglas, for defendant. Jay O. Cox was on the briefs.
    Before Cowen, Chief Judge, LaeamoRE, Dureee, Davis and Collins, Judges.
    
   Cowen, Chief Judge,

delivered the opinion of the court:

This is a suit to recover amounts withheld from final payment due plaintiff under two government contracts. The withholding was predicated upon alleged violations of the Davis-Bacon Act, 40 U.S.C. §§ 276a-276a-7 and the Eight-Hour Laws, 40 U.S.C. §§ 324-326. We are required to resolve basic disagreements as to matters of fact and questions of law.

Plaintiff is a corporation whose principal business is that of a general construction contractor. In early 1957, plaintiff submitted bids on two projects at Holloman Air Force Base, New Mexico, and being the low bidder was awarded contracts DA 29-005-ENG-1900, hereinafter referred to as “1900” (awarded in March 1957), and DA 29-005-ENG-1955, hereinafter referred to as “1955” (awarded in June 1957).

Contract 1900 was the major contract, being in the amount of $1,700,000, and calling for the construction of the principal runways and adjacent aprons. Contract 1955 was in the amount of $380,000 and provided for the construction of certain aircraft parking areas, also denominated “aprons”. Both contracts contained the usual commercial construction contract provisions requiring plaintiff to supply all the labor and materials for the projects according to detailed technical specifications.

The contracts, which incorporated the provisions of the invitation for bids, also contained the standard federal construction contract clauses, including those repetitive of and designed to implement the labor statutes at issue in this litigation. The latter are set forth in our finding 2.

In order to perform its contract, plaintiff, the prime contractor, had to acquire certain materials, including base material, concrete aggregate, hot mix, and sand. They are standard commercial materials and were not specially designed for this project. An initial attempt was made to purchase these supplies at a price which included delivery to the site of the work, i.e., f .o.b. site. This proved to be impossible, since the local suppliers were unable to provide the requisite transport for the large volume of materials needed. Plaintiff therefore contracted with H. B. Llewellyn Sand & Gravel Co., located in Alamogordo, New Mexico, about 12 miles (one way) from the base, and with Las Cruces Bedi-Mix Company of Las Cruces, New Mexico, located about 70 miles (one way) from the base, for the needed supplies, at a price f.o.b. the suppliers’ plants. The materialmen were established commercial suppliers selling to the general public at all times relevant to this action.

In order to provide for the transportation of the materials to Holloman Air Force Base, plaintiff contracted with the Glover Distributing Company, hereinafter referred to as “Glover”. The contract with Glover (which is quoted in finding 7) provided that plaintiff would pay a specified amount per cubic yard (or per cubic yard per mile) for materials delivered by Glover to the project. The agreement, which was denominated a “Subcontract”, contained a requirement that Glover comply with all “applicable Federal and State Labor Laws and Regulations”. The contract also contained provisions that are generally found in agreements made with a trucking subcontractor (or independent contractor).

At and prior to the date of its contract with plaintiff, Glover was principally engaged in the transportation of petroleum products. In addition, Glover had an established business of transporting building materials to contractors working on federal, state, and municipal construction projects in the area where Holloman Air Force Base is located.

To perform its contract with plaintiff, Glover had available only two trucks. In order to provide most of the necessary transportation on this and other jobs, Glover contracted with individual truck owners who would usually drive their own trucks and are referred to as owner-drivers. A few of the owner-drivers owned more than one truck, and for these trucks as well as for the Glover trucks, drivers were employed by the truck owners, although all were presumably paid by Glover. Such drivers are referred to herein as non-owner-drivers.

The owner-drivers were paid an amount based on the volume of material delivered. The non-owner-drivers were paid at an hourly rate.

The truck drivers hauled materials for Glover from spring 1957 until early in 1958. At times, up to 100 drivers were employed upon the projects. The work performed by these drivers consisted entirely of driving dump trucks. They would proceed to the suppliers, pick up a load of material, drive to Holloman Air Force Base, where the load was dumped in stockpiles located within the air base. Access to the stockpiles was gained over a one-mile road, located partially on the base and partially on private property. The road was specially constructed to provide such access. After the truck drivers dumped the materials in the stockpiles, all further handling, processing, and transportation of the materials were performed by plaintiff’s construction employees. About 90 percent of the truck drivers’ time was spent at the source of supply and enroute between the suppliers and the point of delivery.

In June 1957, defendant received a complaint that an individual truck driver was not being paid in accordance with the labor provisions of the contract. The complaint led to a complete investigation of plaintiff’s and Glover’s labor practices. As a result of the investigation, conducted primarily by the Corps of Engineers’ resident labor advisor at Holloman Air Force Base, the defendant withheld the amounts shown in finding 20 from the final payment due plaintiff under the contracts. Following an adverse decision by the Solicitor of the Department of Labor, plaintiff brought this action.

Defendant found (and it is not now disputed) that Glover had paid the owner-drivers gross compensation determined by the number of cubic yards of material hauled as indicated on the suppliers’ haul tickets. The compensation was paid in two checks. The first check was computed by calculating the number of hours worked per week from the time cards maintained by the employees and multiplying this total by the wage rate prescribed in the contracts. The second check, denominated “truck earnings”, represented the balance due after subtracting the amount of the first check from the gross compensation. The amounts paid as truck earnings varied and were not necessarily related to the size of the truck or the number of hours it was used. The non-owner-drivers were paid wages at the rates specified in the contracts; their hours of work were taken from time cards which they themselves prepared. At the behest of defendant, Glover maintained and submitted payrolls for both owner and non-owner-drivers. Glover never conceded that the labor statutes were applicable to either category of driver.

Defendant’s investigator took exception to two facets of Glover’s procedures: (1) The records of the hours worked, and (2) the amounts paid for the use of the trucks provided by the owner-drivers.

Since defendant questioned whether the time cards maintained by the truck drivers were accurate, the investigator made timings of truck runs and computed average round trip times for each run. In order to protect the integrity of the basic contract labor rates, defendant felt it necessary to establish a fair truck rental in the combined labor-truck compensation arrangement provided for by Glover. The investigator tried to ascertain the prevailing rental rates for dump trucks in the Alamogordo area but found that Glover had virtually every such truck under contract. Consequently, defendant substantially adopted the rental rates for dump trucks with drivers as set forth in the Estimator’s Master Data Sheet, a document prepared by the Southwestern Division, Corps of Engineers, and the Association of General Contractors, for use in estimating the cost of area construction projects.

Having thus fixed the basis for his computations, the investigator recomputed the hours worked by the truck drivers. The suppliers’ haul tickets indicated the origin of all supplies and cumulatively showed the total number of hauls made by each driver, from that source. The time worked per day was determined by multiplying the number of hauls by the average time that the defendant’s investigator had calculated as necessary for a round trip between the supplier and the air base. The daily hours were totaled to produce a weekly figure. The hours worked for the week were multiplied by the combined truck-labor rate obtained from the Estimator’s Master Data Sheet for the size of truck involved. To this sum was added the overtime premium (one-half of the contract labor rate) for all daily hours worked in excess of eight hours. The grand total was compared with Glover’s records to determine the underpayments of wages.

Defendant determined the wages due non-owner-drivers by multiplying the number of hauls made by each driver by the average time required per haul as calculated by defendant’s investigator. The weekly total of hours as thus determined was then multiplied by the contract hourly wage rates to arrive at the weekly straight time wages.

When defendant, using the methods described above, determined that there was a violation of the Eight-Hour Laws, a penalty of $5 was assessed.

Glover’s records were accepted by defendant to the extent that they showed the amount of compensation actually paid to the truck drivers and the number of trips (or hauls) made by each driver.

Of the total amount defendant withheld from the final payments due upon the contracts, plaintiff conceded that $140 was properly retained for violations of the Eight-Hour Laws involving its employees. Plaintiff sues to recover $9,414.46 withheld on account of alleged violations of the labor statutes as to the truck drivers employed by Glover.

By letter of April 21,1959, the contracting officer officially notified plaintiff of the results of the investigation. • At all times, plaintiff denied that the Davis-Bacon Act and the Eight-Hour Laws applied to the truck drivers and vigorously asserted this position in detailed correspondence with the contracting officer.

The contracting officer consistently took the position that neither he nor the Armed Services Board of Contract Appeals had jurisdiction of the dispute involving the application of the labor laws. On the other hand, plaintiff insisted that the contracting officer was obligated to make findings of fact and to render a decision on the dispute. This difference of viewpoint led to a conference and to the execution of a stipulation of facts which was forwarded to the Department of Labor. Except for the stipulation, which we shall discuss hereinafter, it does not appear that the parties ever agreed upon the basic facts underlying the legal issues as to the application of the Davis-Bacon Act and the Eight-Hour Laws.

By letter of April 3, 1961, the Solicitor of Labor, acting for the Secretary of Labor, ruled adversely to plaintiff. The opinion did not contain a legal discussion of statutory coverage. Bather, it referred to and relied upon five previous opinions of the Solicitor and one opinion by the Attorney General, 41 Op. Atty. Gen. 488 (1960).

Plaintiff responded to the ruling by stressing its non-acquiescence and by reiterating its request for a final decision by the contracting officer from which it could appeal. After plaintiff’s request was again denied, this suit followed.

We shall first discuss defendant’s contention that plaintiff did not dispute the underlying facts in the case and that the only question presented to the contracting officer was a legal one — the application of the labor statutes. This contention is not supported by the record. There was a sharp dispute as to the accuracy of the time records kept by the truck drivers and as to defendant’s determination of the portion of the compensation paid to the truck drivers that should be allocated for truck rental. The contracting officer’s refusal to make findings of fact or to entertain an appeal was sufficiently broad to cover issues of fact as well as issues of law. The Department of Labor procedures did not independently concern themselves with factual matters. The contracting officer’s report, which contained statements of fact disputed by plaintiff, was accepted as the factual basis for the de-cisión by the Department of Labor. At that time, the Department did not have an appellate body before which plaintiff could be heard on the issues in question here.

Under these circumstances we cannot conclude that the findings of fact that are implicit in the Solicitor’s opinion or in the contracting officer’s report must be accepted as correct. We take the contracting officer at his word and proceed on the basis that he made no findings of fact and rendered no decision in the case. Thus, it follows that the factual determinations of the contracting officer are not entitled to the limited scope of review provided by the Wunderlich Act, 41 U.S.C. 321; cf. Winn-Senter Construction Co. v. United States, 110 Ct. Cl. 34 (1948). Even if we were to hold that the issues were within the provisions of the disputes clause of the contracts and were appealable to the board of contract appeals, the contracting officer’s refusal to issue a final decision excuses plaintiff from any duty it may have had to pursue the administrative remedies provided by the contract. Cf. C. J. Langenfelder & Son, Inc. v. United States, 169 Ct. Cl. 465, 341 F. 2d 600 (1965); Garod Radio Corp. v. United States, 158 Ct. Cl. 596 (1962).

However, we do not reach the issue of what agency had authority to make final disposition of the contract disputes involving the coverage of the labor statutes or, whether there is a division of responsibility between the agencies concerned.

As previously noted and as shown in our finding 20, the parties executed a stipulation in May 1960 with the understanding that it would be submitted to the Department of Labor, along with the findings made by the defendant’s labor advisor, for the Secretary of Labor’s use in determining the applicability of the contract labor provisions to the truck drivers. Paragraph 14 of the stipulation, relating to the owner-drivers, stated that the gross earnings of each truck driver, exclusive of truck rental, equaled or exceeded payments at the minimum wage rate applicable to truck drivers as predetermined by the Secretary of Labor. A literal reading of that portion of the stipulation would render moot all questions regarding the application of the labor statutes to the owner-drivers. However, we have found (finding 25 (d)) that the parties did not intend that such a meaning should be ascribed to paragraph 14. Plaintiff knew that defendant had consistently taken the position that the truck drivers did not receive the specified minimum wages. For this reason, we have found that paragraph 14 was intended by the parties to mean that the truck drivers received the minimum contract wages only if the hours of work reported on Glover’s payrolls were correct and if defendant’s contention as to the amounts that should be allowed for the fair rental value of the truck is disregarded. A court may relieve a party of his stipulation if necessary to prevent an injustice, particularly where facts contrary to the stipulation are established by the evidence. Federal Export Corp. v. United States, 88 Ct. Cl. 60, 25 F. Supp. 109 (1938) cert. denied, 308 U.S. 590 (1939). The evidence shows and we have found that the remaining portions of the stipulation correctly stated the meaning of the parties. At the least, the stipulation is an admission by the parties in interest.

Upon a review of the whole record, we have found that plaintiff has established by a preponderance of the evidence that the hours worked by the truck drivers are correctly reflected in Glover’s payrolls. We have rejected defendant’s reconstruction of the hours worked by the truck drivers for the several reasons set forth in our finding 35. Defendant did not at any time present evidence as to the minimum time required for a truck driver to make a round trip between the suppliers’ plants and the air base. The investigator’s work papers were not preserved, and it is thus impossible to determine the accuracy of his sampling process. He made calculations of the average time required for round trips by the truck drivers and, in doing so, he failed to take into account a number of essential factors. In addition, one truck driver who testified and a number who were interviewed by defendant’s investigator stated that they were paid for. the hours they worked at the minimum wage rates posted on the jobsite. At times as many as 100 drivers were employed by Glover. Many of these were transients. If Glover’s payrolls were as inaccurate and unreliable as defendant claims, it would appear that defendant could have found at least a few drivers who would have so stated.

The Davis-Bacon Act provides in pertinent part as follows, at 40 U.S.C. 276a:

* * * every contract based upon these specifications shall contain a stipulation that the contractor or his subcontractor shall pay all mechanics and laborers employed directly upon the site of the work, unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account, the full amounts accrued at time of payment, computed at wage rates not less than those stated in the advertised specifications, regardless of any contractual relationship which may be alleged to exist between the contractor or subcontractor and such laborers and mechanics, * * *

and at 40 U.S.C. 276a-2:

$ & $ ‡ $
(b) If the accrued payments withheld under the terms of the contract, as aforesaid, are insufficient to reimburse all the laborers and mechanics, with respect to whom there has been a failure to pay the wages required pursuant to sections 276a to 276a-5 of this title, such laborers and mechanics shall have the right of action and/or of intervention against the contractor and his sureties conferred by law upon persons furnishing labor or materials, and in such proceedings it shall be no defense that such laborers and mechanics accepted or agreed to accept less tban the required rate of wages or voluntarily made refunds.

Research into the case law dealing with the extent to which the act is applicable under the circumstances of this case is notably unrewarding. The parties have cited no cases on this facet of the act and we have found none. ■■

The reports of the congressional committees which considered the Davis-Bacon Act do not throw any light on the issues to be decided. However, the debates on the floor of Congress on a bill that was substantially the same as the 1935 amendment to the Davis-Bacon Act, as well as the debates on the Federal Road Act, which incorporated the Davis-Bacon Act, demonstrate quite clearly that Congress did not intend that employees of materialmen would be covered by the Davis-Bacon Act. The legislative history does not provide an exact definition of “materialmen”, nor does it reveal whether a supplier of the material is exempt from the provisions of the act because he is not a “subcontractor” as mentioned in the statute, or because his work is not performed “directly upon the site” or because his function is not a part of the construction contract.

Therefore we proceed to an additional source of help on the issue before us. We are enjoined by the defendant to give great weight to the administrative interpretations of the statute by the executive agency designated to administer the act. This is an accepted legal principle, United States v. Zucca, 351 U.S. 91 (1956); United States v. Leslie Salt Co., 350 U.S. 383 (1956). Therefore, we shall look to the administrative interpretations of the statute by the Secretary of Labor (appearing as opinions of the Solicitor of the Department of Labor) and to the regulations promulgated under Reorganization Plan. No. 14, 5 U.S.C. 133z-15.

Beginning as early as 1942, the Solicitor has excluded from statutory coverage the employees of bona fide material-men who sell to a contractor engaged in construction contracts covered by the Davis-Bacon Act. The exemption has been qualified to the extent that the materialman must be selling supplies to the general public, the plant must not be established specially for the particuar contract, and the plant is not located at the site of the work. The Solicitor has always held that truck drivers employed by materialmen (exempt from statutory coverage) to transport supplies to the jobsite are no more subject to the provisions of the Davis-Bacon Act and the Eight-Hour Laws than are other employees of the materialmen. This ruling was expanded by an opinion holding that employees of a trucking firm under contract to the materialmen to deliver the supplies to the site are not subject to the provisions of the Davis-Bacon Act.

However, in later opinions, the Solicitor has introduced a functional distinction between “materialmen” and “subcontractors”, or has separated work involved in the material-man’s function from work done under the contract. In two opinions, he has held that where a contractor covered by the statute is also an established materialman selling to the general public, the employees of his supply operation, including those who are engaged in the delivery of materials to the federal construction project, are not subject to the Davis-Bacon Act.

Finally, and after his opinion of October 3, 1961, in this case, the Solicitor on March 12,1962, issued his opinion designated as DB-22, wherein he held that the employees of an established trucking firm under contract to transport materials from the materialman to the jobsite were not covered by the Davis-Bacon Act, regardless of whether the trucking firm was under contract to the materialman or to the prime contractor — he ruled that in either situation the truckers were performing a materialman’s function.

We are constrained to the view that the conclusion reached by the Solicitor in his opinion DB-22 is applicable to the particular facts of this case. We see no material distinctions in the facts and we believe that our conclusion is in accord with the intention of Congress in enacting the Davis-Bacon Act.

The suppliers from which the material for the contracts in suit were obtained were in the business of selling such materials to the general public and were not established specifically to furnish materials for plaintiff’s contracts. Glover was and is an independent trucking concern and indeed appears to have been the major transporter of construction materials in the area. We do not believe that the status of his employees was affected because of the fact that in its existing business of hauling building materials, Glover obtained most of its trucks for this and for other contracts from owner-drivers. Glover introduced no new factor into the economy because it used the same procedure on other federal, state and municipal contracts. We see no logic in holding that owner-drivers who are employed by an independent trucker are more deserving of statutory coverage than non-owner drivers employed by the same trucking firm.

Opinion DB-22 is in conflict with the Department of Labor decision in this case, which did not contain a legal analysis of the basis for the decision. Rather, the decision cited previous opinions reflecting the general position of the Solicitor. We also note that opinion DB-22 has not been repudiated but has been reaffirmed in the Solicitor’s opinion No. DB-36, issued June 24, 1963. Therefore, we must conclude that the opinion designated as DB-22 represents the position of the defendant because we find nothing to indicate that it is an aberration.

We have examined the regulations which are quoted in substantial part in footnote 6. In the main, the regulations are repetitive of the statute. Their application turns on the definition of the term “subcontractor” and a functional separation between work that is being performed as a part of the construction and work which is not.

Although the application and inter-relationship between various terms used in the regulations including “directly upon the site”, “construction”, “furnishing of materials”, and “subcontractors” are not altogether clear to us, we do not find that the position cited by the Solicitor in DB-22 is inconsistent with the regulations.

One of the most frequent approaches used by the Department of Labor in deciding whether a particular group of workmen is covered by the Davis-Bacon Act, is to distinguish between their employees as materialmen or subcontractors; the latter are specifically covered by the statute. In such instances, the Solicitor often cites cases involving suits on statutory bonds executed pursuant to the Heard Act, 28 Stat. 278, and its successor, the Miller Act, 40 U.S.C. 270a. This has been done because the Davis-Bacon Act at 40 U.S.C. 276a-2 specifically gives the employee who has not received the statutory wage, an action on the bonds.

We have found none of such cases which deal specifically with the status of the employee of an independent trucking firm whose work is limited to the delivery of commercial building material to the site. However, the following statement from the opinion of the Supreme Court in MacEvoy Co. v. United States, 322 U.S. 102 (1944) is often quoted:

* * * But under the more technical meaning as established by usage in the building trades a subcontractor is one who performs for and takes from the prime contractor a specific part of the labor or material requirements of the original contract, thus excluding ordinary laborers and materialmen.

Defendant relies on this language and argues that since the contracts required plaintiff to furnish all plant, materials and labor, for the completion of the work, Glover was plaintiff’s subcontractor and his employees were therefore covered by the Davis-Bacon Act and the Eight-Hour Laws. But defendant concedes that neither the supplier’s truck drivers nor the drivers employed by independent trucking firms under contract with the supplier, is covered by the statutes. If defendant’s view is accepted without limitation, the drivers mentioned would be covered, as would all the employees of materialmen. Such a result would be clearly contrary to the intention of Congress.

In reviewing the opinions of the Solicitor of the Department of Labor, it is not altogether clear whether materialmen are excluded from statutory coverage because they are specifically excluded by tbe regulations or statute, or because they are not subcontractors who perform a specific portion of the work called for in the prime contract, or possibly because they do not work directly upon the site of the work. We assume that all of these approaches are closely related.

In this case we hold that Glover’s employees were not covered by the labor statutes because of the nature of the function Glover performed, namely, the delivery of standard materials to the site — a function which is performed independently of the contract construction activities. We think this decision is a logical extension of the congressional intent to exclude employees of materialmen from the coverage of the Davis-Bacon Act.

Since we have decided that the truck drivers are exempt from the Davis-Bacon Act and accepted Glover’s payrolls as a correct record of the hours worked, we find that there was no violation of the Eight-Hour Laws.

We emphasize that our decision is limited to the facts of this case and do not reach the contentions of the parties as to the other permutations of the Davis-Bacon Act. Cf. Communist Party v. Control Board, 367 U.S. 1 (1961); Barr v. Matteo, 355 U.S. 171 (1957).

Plaintiff has conceded that there were some violations of the Eight-Hour Laws with respect to its own employees under contract 1955 and has failed to offer any evidence showing why it is entitled to a return of the $100 withheld under that contract.

It follows from what has been said above that plaintiff is entitled to recover and the judgment is entered for it in the sum of $9,314.46.

Davis, Judge,

dissenting:

I do not disagree with the court that factual as well as legal issues are properly before us and that Glover’s records of the hours worked by its drivers should be accepted. Nor do I differ with the other facts found by the court. I dissent, however, from the legal holding that Glover’s drivers were not covered by the Davis-Bacon Act. The court follows opinion DB-22 of the Solicitor of Labor (which is admittedly very close) in preference to the Department’s contrary opinion in this very case. I would put aside the administrative decisions, whether they be one way or the other. In this sector of its Davis-Bacon Act interpretations the Labor Department’s varied rulings recall the Minotaur’s labyrinth in the complexity of their turnings. Unlike Theseus, I have been unable to find the golden thread through the maze and must therefore escape onto the higher and easier ground of the statute itself. From that vantage post, I see these drivers as covered.

Glover should be treated as plaintiff’s “subcontractor”, within the meaning of the Davis-Bacon Act. That is what Glover is called in the agreement it made with plaintiff, and that agreement is tied, in almost every pertinent clause, to the prime contracts plaintiff had with the Federal Government. The material hauled by Glover belonged to plaintiff, and was necessary for the plaintiff’s work under the prime contracts. Glover was not a supplier or a material-man in any ordinary sense; it was carrying the material for plaintiff, under an arrangement initiated by and with plaintiff — not the suppliers. If plaintiff had used its own employees for this part of the project, their wages would be subject to the Act (provided, as I think, they were employed “directly upon the site of the work”); Glover merely substituted its men for plaintiff’s in performing this aspect of the job. Cf. Clifford F. MacEvoy Co. v. United States, 322 U.S. 102, 109 (1944). Moreover, Glover expressly agreed “to comply with all applicable Federal and State Labor Laws and Regulations and to pay all persons employed hereunder the rates of pay provided by the general conteact and by such laws.” The terms of the parties’ own understanding should not be conclusive where they attempt to avoid coverage under the Davis-Bacon Act, but I would hold them to their agreement when they themselves concur, in that agreement, that the secondary employer is a “subcontractor” and his men are to be paid under the Act.

Also, Glover’s drivers were, in my view, employed “directly upon the site of the work.” We need not decide whether drivers hired in like circumstances to haul material to a construction site are always under the Davis-Bacon Act; these men drove for a substantial time on Holloman Air Force Base which I regard as the minimal “site” under plaintiff’s contracts. Substantial work on the site, even though it be much the minor part of the employee’s total work, is enough for coverage. Cf. Walling v. Jacksonville Paper Co., 317 U.S. 564, 572 (1943); Mabee v. White Plains Publishing Co., 327 U.S. 178, 180-83 (1946); Crook v. Bryant, 265 F. 2d 541, 543-44 (C.A. 4, 1959); Telephone Answering Service, Inc. v. Goldberg, 290 F. 2d 529, 532 (C.A. 1, 1961).

The court agrees that, if the drivers were covered by the Davis-Bacon Act, there were a number of instances in which plaintiff (through Glover) failed to pay the wages called for by that legislation and the Eight Hour Law. I would remand to the trial commissioner for determination of such amounts.

FINDINGS OF FACT

The court, having considered the evidence, the requested findings of fact, the briefs, and the argument of counsel, makes findings of fact as follows:

1. The plaintiff, H. B. Zachry Company, is a corporation organized and existing under the laws of the State of Delaware, with its principal office and place of business in San Antonio, Texas. At all times material to this case, the plaintiff was authorized to do business in the States of Texas and New Mexico.

2. (a) On January 30,1957, tbe defendant, acting through the District Engineer, Albuquerque District, Corps of Engineers, U.S. Army, issued an invitation for bids on a proposed construction contract relating to a project that was described generally as “Taxiways and Aprons, Holloman Air Force Base, New Mexico.”

(b) The invitation for bids referred to in paragraph (a) of this finding was accompanied by instructions to bidders and a bid form that contained the general provisions of the proposed contract and the specifications, including general and special conditions, for the construction to be bid upon.

(c) The instructions to bidders contained the following statement (among others) :

1. Explanation to Bidders. Any explanation desired by bidders regarding the meaning or interpretation of the * * * specifications must be requested in writing and with sufficient time allowed for a reply to reach them before the submission of their bids. * * *

(d) Among the general provisions of the proposed contract were the following:

20. DAVIS-BACON ACT (40 U.S.C. 276a-a(7))
(a) All mechanics and laborers employed or working directly upon the site of the work will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by the Copeland Act (Anti-Kickback) Regulations (29 CFR, Part 3)) the full amounts due at time of paymentj computed at wage rates not less than those contained m the wage determination decision of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the Contractor or subcontractor and such laborers and mechanics; and a copy of the wage determination decision shall be kept posted by the Contractor at the site of the work in a prominent place where it can be easily seen by the workers.
(b) In. the event it is found by the Contracting Officer that any laborer or mechanic employed by the Contractor or any subcontractor directly on the site, of the work covered by this contract has been or is being paid at a rate of wages less than the rate of wages required by paragraph (a) of this clause, the Contracting Officer may (1) by written notice to the Government Prime Contractor terminate his right to proceed with the work, or such part of the work as to which there has been a failure to pay said required wages, and (2) prosecute the work to completion by contract or otherwise, whereupon such Contractor and his sureties shall be liable to the Government for any excess costs occasioned the Government thereby.
(c) Paragraphs (a) and (b) of this clause shall apply to this contract to the extent that it is (1) a prime contract with the Government subject to the Davis-Bacon Act or (2) a subcontract under such prime contract.
21. EIGHT-HOUR LAWS — OVERTIME COMPENSATION
No laborer or mechanic doing any part of the work contemplated by this contract, in the employ of the Contractor or any subcontractor contracting for any part of said work contemplated, shall be required or permitted to work more than eight hours in any one calendar day upon such work, except upon the condition that compensation is paid to such laborer or mechanic in accordance with the provisions of this clause. The wages of every laborer and mechanic employed by the Contractor or any subcontractor engaged in the performance of this contract shall be computed on a basic day rate of eight hours per day and work in excess of eight hours per day is permitted only upon the condition that every such laborer and mechanic shall be compensated for all hours worked in excess of eight hours per day at not less than one and one-half times the basic rate of pay. For each violation of the requirements of this clause a penalty of five dollars shall be imposed for each laborer or mechanic for every calendar day in which such employee is required or permitted to labor more than eight hours upon said work without receiving compensation computed in accordance with this clause, and all penalties thus imposed shall be withheld for the use and benefit of the Government * * *.
FUNDS TO ASSURE WAGE PAYMENT
There may be withheld from the Contractor so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics employed by the Contractor or any subcontractor the full amount of wages required by this contract. In the event of failure to pay any laborer or mechanic all or part of the wages required by this contract, the Contracting Officer may take such action as may be necessary to cause the suspension, until such violations have ceased, of any further payment, advance, or guarantee of funds to or for the Government Prime Contractor.

(e) Among the general conditions set out in the specifications were the following:

GC-1. SCOPE OF WORK: The work to be performed under this contract consists of furnishing all plant, materials, equipment, supplies, labor, and transportation, including fuel, power, water (except any materials, equipment, utility or service, if any, specified herein to be furnished by the Government), and performing all work as required in the statement of work in the contract, in strict accordance with the specifications, schedules, and drawings, all of which are made a part hereof * * *.
^ ❖ ❖
GC-3. SITE INVESTIGATION AND REPRESENTATIONS : The contractor acknowledges that he has satisfied himself as to the nature and location of the work, the general and local conditions, including but not limited to those bearing upon transportation, disposal, handling and storage of materials, availability of labor, water, electric power, roads and uncertainties of weather, river stages, tides or similar physical conditions at the site, the conformation and conditions of the ground, the character of equipment and facilities needed preliminary to and during prosecution of the work. * * * Any failure by the contractor to acquaint himself with the available information will not relieve him from responsibility for estimating properly the difficulty or cost of successfully performing the work. The Government assumes no responsibility for any conclusions or interpretations made by the contractor on the basis of the information made avilable by the Government. The Government also assumes no responsibility for any understanding or any during or prior to the execution of this contract, unless (i) such understanding or representations are expressly stated in the contract and (ii) the contract expressly provides that the responsibility therefor is assumed by the Government. Representations which are not expressly stated in the contract and for which liability is not expressly assumed by the Government in the contract shall be deemed only for the information of the contractor.
GC-4. OPERATIONS AND STORAGE AREAS:
a. All operations of the contractor (including storage of materials) upon Government premises shall be confined to areas authorized or approved by the Contracting Officer. No unauthorized or unwarranted entry upon or passage through, or storage or disposal of materials shall be made upon Government premises. Government premises adjacent to the construction will be made available for use by the contractor without cost whenever such use will not interfere with other Government uses or purposes. * * *
Hi # H* ❖ ❖
GC-6. SUBCONTRACTORS: * * * Nothing contained in this contract shall create any contractural [sic] relation between the subcontractor and the Government.

(f) Among the special conditions set out in the specifications was the following:

SC-21. RATES OF WAGES:
a. The minimum wage to be paid laborers and mechanics on this project, as determined by the Secretary of Labor to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the pertinent locality.
b. Any class of laborers and mechanics not listed below employed on this contract shall be classified or reclassified conformable to the schedule set out below by mutual agreement between the contractor and the class of labor concerned, subject to the prior approval of the Contracting Officer. In the event the interested parties cannot agree on the proper classification or reclassification of a particular class of laborers and mechanics to be used, the question, accompanied by the recommendation of the Contracting Officer, shall be referred to the Secretary of Labor for final determination.

(g) Immediately after paragraph SG-21 of the special conditions, there was inserted a schedule of minimum wage rates that provided in pertinent part as follows:

Department of Labor schedule of minimum wage rates, Decision No. H-9901 — Holloman Air Force Base, New Mexico, dated 9 January 1957
Glassification Per hour
% % ijt %
Truck drivers:
% sH #
Dump trucks:
Batch and under 8 cu. yds_[$] 1.79
8 and under 16 cu. yds_ 1.9Í
16 and under 20 cu. yds_ 2. 05
20 cu. yds. and over_ 2.10
íjc »{í íjí ' í{i

3. (a) Pursuant to the invitation for bids referred to in finding 2, the plaintiff submitted a bid to the District Engineer at Albuquerque, New Mexico, on March 5, 1957.

(b) The plaintiff’s bid was accepted by the District Engineer on March 6,1957.

(c) In accordance with the bid and acceptance referred .to in paragraphs (a) and (b) of this finding, the defendant (acting through the District Engineer as contracting officer) and the plaintiff entered into a formal contract under the date of March 8,1957, covering the construction of taxiways and aprons at the Holloman Air Force Base. This contract was numbered DA-29-005-ENG-1900, and it will usually be referred to hereafter in the findings as “contract 1900.” Contract 1900, together with the specifications that formed part of it, contained (among other provisions) the provisions that are set out in paragraphs (d), (e), (f), and (g) of finding 2. The total contract price was given as $1,718,124.

4. On March 23,1957, the plaintiff received from the contracting officer a notice to proceed with the work on contract 1900.

5. (a) On March 25, 1957, the defendant, acting through the District Engineer at Albuquerque, New Mexico, issued an invitation for bids on a proposed construction contract relating to a project that was described generally as “Apron Loading P/AC [parking aircraft], Holloman Air Force Base, New Mexico.”

(b) The invitation for bids referred to in paragraph (a) of this finding was accompanied by instructions to bidders and a bid form that contained the general provisions of the proposed contract and the specifications, including general and special conditions, for the construction to be bid upon. These documents contained, inter alia, provisions identical with those quoted in paragraphs (c), (d), (e), and (f) of finding 2, except that the paragraph of the special conditions dealing with “Bates of Wages” was numbered SC-20 instead of SC-21. In lieu of setting out, immediately after the paragraph of the special conditions on “Bates of Wages” a schedule of minimum wage rates similar to the schedule referred to in paragraph (g) of finding 2, the specifications accompanying the invitation for bids dated March 25, 1957, informed bidders parenthetically at the pertinent place that “Wage Bates will be inserted by amendment prior to bid opening date.”

(c) Prospective bidders on the project mentioned in paragraph (a) of this finding were notified under the date of April 3, 1957, that paragraph SC-20 of the specifications was amended by adding to it a schedule of wage rates reading in pertinent part as follows:

Department of Labor schedule of minimum wage rates, Decision No. R-14A61 — Holloman Air Force Base, New Mexico, dated 21 March 1051
Classification Per hour
* * * *
Truck drivers:
*****
Dump trucks:
Batch and under 8 cu. yds_[$] 1. 79
8 cu. yds. and under 16 cu. yds_ 1. 91
16 cu. yds. and under 20 cu. yds_ 2. 05
20 cu. yds. and over_ 2.10

6. For the construction of the project covered by contract 1900 (and also for the construction of the “Apron Loading P/AC” project mentioned in finding 5, if the plaintiff should be able to obtain a contract for that project), the plaintiff needed (among other things) base material, concrete aggregate, and hot-mix aggregrate. Accordingly, the plaintiff made agreements with the H. B. Llewellyn Sand & Gravel Company, of Alamogordo, New Mexico, and the Las Cruces Bedi-Mix Company, of Las Cruces, New Mexico, for the purchase of the supplies mentioned in the preceding sentence. Under the agreement with the H. B. Llewellyn Sand & Gravel Company, the plaintiff was to purchase supplies f .o.b. the supplier’s plant, which was located approximately 12 miles from the Holloman Air Force Base. Similarly, the plaintiff was to purchase supplies from the Las Cruces Bedi-Mix Company f.o.b. the supplier’s plant, which was located approximately 40 miles from the Holloman Air Force Base. Both of these companies were regular commercial suppliers selling to the general public. Plaintiff attempted to get the suppliers to deliver their material to the jobsite to purchase materials f.o.b. site), but the suppliers refused since they did not have sufficient vehicles to transport the volume of materials involved in the project.

7. (a) In order to arrange for the transportation of the supplies mentioned in finding 6 from the respective plants of the H. B. Llewellyn Sand & Gravel Company and the Las Cruces Bedi-Mix Company to the Holloman Air Force Base, the plaintiff entered into a written agreement on April 15, 1957, with C. A. Glover, of Alamogordo, New Mexico, doing business as the Glover Distributing Company. This agreement provided in pertinent part as follows:

THIS AGBEEMENT, made this 15th day of April, 1957, by and between H. B. Zachry Company, a corporation, hereinafter called “CONTBACTOB”, and C. A. Glover, P. O. Box 591, Alamogordo, New Mexico, hereinafter called “SUBCONTBACTOB”,
WITNESSETH:
I.
GENERAL CONTRACT: The CONTRACTOR has a contract for the construction of Taxiways and Aprons at Holloman Air Force Base, New Mexico, for Corps of Engineers, U.S. Army Contract No. DA-29-005-eng-1900, hereinafter called “OWNEB”. Said Contract dated 8 March 1957, together with drawings and specifications by Corps of Engineers, U.S. Army, hereinafter called “Engineers”, is herewith specifically referred to and made a part of this Agreement for all purposes, and is hereinafter called the “GENERAL CONTRACT”.
In this he has read and understood the GENERAL CONTRACT and is familiar with all of its terms and provisions, especially, but not limited to, those applicable to the work to be performed under this Agreement.
II.
SUBCONTRACT: SUBCONTRACTOR agrees to furnish all materials and perform all work described herein, all in accordance with the terms, conditions and specifications of the GENERAL CONTRACT, such work being more specifically described as follows:
Subcontractor to haul materials from sources designated by job superintendent to Holloman Air Force Base, New Mexico, as follows:
Concrete Aggregates-Approx. Base Materials_Approx. 29,000 e.y. Hot Mix Aggregates_Approx. 11,800 e.y. Concrete Sand_Approx. 20,000 e.y.
Subcontractor to furnish all equipment, fuel, supplies and repairs to his trucks, and drivers for trucks. Should Subcontractor be unable to keep sufficient equipment on the project to adequately keep up with Contractor’s demand for materials, Contractor reserves the right to call in other equipment to supplement the hauling operations, and shall deduct from Subcontractor’s earnings all costs involved in hauling by others.
IV.
PERFORMANCE AND PAYMENT BOND: PERFORMANCE AND PAYMENT BOND (will) * * * be required in the amount of one hundred (100)% of the total consideration for this Agreement, as set forth under Paragraph Y, CONSIDERATION, below. Such bond, if required, shall be subject to approval of CONTRACTOR as to form and sureties and certified copy thereof shall be furnished to CONTRACTOR prior to commencement of operation hereunder.
V.
CONSIDERATION: CONTRACTOR agrees to pay SUBCONTRACTOR for the performance of the work described herein, the following amounts:
Four and one-half cents ($.045) per cubic yard per mile, for all materials delivered to Jobsite by Subcontractor.
Except Las Cruces sand which shall be 2.50 per cubic yard, total. 10% retainage will be withheld from payments to Subcontractor. Such retainage will be paid when all materials have been hauled to satisfaction of Contractor, and when statement is submitted to Contractor showing that all outstanding accounts made in connection with the above project have 'been paid by Subcontractor.
The above payments payable in current funds and subject to additions and deductions for changes as may be agreed upon in writing by the parties to this Agreement.
VI.
PAYMENTS: The CONTBACTOB agrees to pay the SUBCONTBACTOB the consideration above mentioned in full upon completion of the SUBCONTBAC-TOB’S work and acceptance thereof by the OWNEB ENGINEEE and/or ABCHITECT. Provided, however, that the CONTBACTOB will not be required to pay any such amount due the SUBCONTBACTOB until payment therefor has been received by the CONTBAC-TOB from the OWNEB, unless specified otherwise herein.
V »!• •}•
vn.
GENEBAL CONDITIONS: The CONTBACTOB and SUBCONTBACTOB agree to be bound by the terms of the GENEBAL CONTBACT, Drawings and Specifications as far as applicable to this subcontract, and also by the following provisions:
THE SUBCONTBACTOB agrees:
A. To be bound to the CONTBACTOB by the terms of the GENEBAL CONTBACT, and to assume toward said CONTBACTOB all obligations and responsibilities that the CONTBACTOB assumes toward the OWNEB under such contract.
*{* *i» «í»
D. Not to let, assign or transfer this Assignment or any part thereof or any interest therein without the written consent of CONTBACTOB.
# * # *
G. To carry Workmen’s Compensation and Public Liability Insurance in companies acceptable to the OWNER and CONTRACTOR with certified copies of the applicable policies prior to commencement of operations under this subcontract. *****
H. To comply with all applicable Federal and State Labor Laws and Regulations and to pay all persons employed hereunder the rates of pay provided by the GENERAL CONTRACT and by such laws.
I. To comply with all Federal and State Social Security and Unemployment Insurance requirements and make all applicable tax reductions from its employees under the Federal Withholding Tax Law, and to furnish the CONTRACTOR with certified copies of each payroll when required under the GENERAL CONTRACT.
J. To indemnify and hold harmless CONTRACTOR from any claims, liabilities, penalties or forfeitures for which CONTRACTOR or OWNER may become liable as a result of any breach or violation of SUBCONTRACTOR, its officers, agents or employees, of any provision of the GENERAL CONTRACT or any statute, ordinance, regulation or ruling of any federal, state or local governing body having or claiming to have jurisdiction over the operations or any part thereof performed’hereunder. If there should be any evidence of any such claim, liability, penalty or forfeiture during the progress of the work hereunder, CONTRACTOR shall have the right to retain out of any money then due or thereafter to become due to SUBCONTRACTOR under this Agreement, an amount sufficient to completely indemnify it against such claim, liability, penalty or forfeiture. If, after completion of this contract and final payment of the contract price, any such claim, liability, penalty or forfeiture shall appear, SUBCONTRACTOR shall completely indemnify CONTRACTOR or OWNER against any loss or damage which may be suffered by reason hereof.
The CONTRACTOR agrees:
K. To be bound to the SUBCONTRACTOR by all the obligations that the OWNER assumes to the CONTRACTOR under the GENERAL CONTRACT and by all the provisions thereof affording remedies and redress to the CONTRACTOR from the OWNER.
* * * * *
vm.
SPECIAL CONDITIONS: The CONTRACTOR and SUBCONTRACTOR further agree as follows: * * * Subcontractor is to carry his own payroll, taxes and insurance, and submit certified copies of payrolls weekly to Contractor.

(b) At the time of entering into this contract with plaintiff, Glover Distributing Company was principally engaged in the transportation of oil products. However, it did a substantial amount of business in transporting building materials to federal, state, and municipal contractors in the Alamogordo^area. ' Glover owned two trucks suitable for hauling of sand, aggregate, etc., and therefore contracted with truck owners (who usually drove their own trucks) for up to 100 additional trucks (used for all jobs). Glover was paid by all contractors on essentially the same basis: a stated amount per cubic yard of material delivered to the jobsite.

(c) In negotiating the agreement referred to in paragraph (a) of this finding, the plaintiff called the attention of the Glover Distributing Company to the requirement of contract 1900 respecting the payment of minimum wage rates to truck drivers, and informed Glover that truck drivers hauling base material, concrete aggregate, and hot-mix aggregate from the plants of the H. B. Llewellyn Sand & Gravel Company and the Las Cruces Redi-Mix Company to the Holloman Air Force Base must be paid not less than the prescribed minimum wage rates. Such instructions to Glover were given at the behest of the Corps of Engineers resident labor advisor.

8. Under the date of May 3,1957, the plaintiff notified the project engineer of the Corps of Engineers at the Holloman Air Force Base in writing as follows:

This is to advise that we have entered into a subcontract agreement with Mr. C. A. Glover, Box 591, Alamogordo, New Mexico, for hauling of concrete aggregates, base materials, and sprinkling of water, under the above contract [contract 1900].
I trust this party will meet with your approval for use as a subcontractor on the above project.

9. (a) Pursuant to the invitation for bids referred to in finding 5, including the amendment mentioned in paragraph (c) of that finding, the plaintiff submitted a bid to the District Engineer at Albuquerque on June 12,1957.

(b) The plaintiff’s bid was accepted by the District Engineer on June 25,1957.

(c) In accordance with the bid and acceptance referred to in paragraphs (a) and (b) of this finding, the defendant (acting through the District Engineer as contracting officer) and the plaintiff entered into a formal contract under the date of June 25, 1957, covering the construction of the “Apron Loading P/AC” project mentioned in finding 5. The contract was numbered DA-29-005-ENG-1955, and it will usually be referred to hereafter in the findings as “contract 1955.” The total contract price was given as $883,853.50.

(d) Contract 1955, together with the specifications that formed part of it, contained (among other provisions) general provisions, general conditions, and special conditions identical with those set out in paragraphs (d), (e), and (f) of finding 2, except that the paragraph of the special conditions relating to “Rates of Wages” was numbered SC-20 instead of SC-21. There was incorporated in connection with paragraph SC-20 of the special conditions the schedule of minimum wage rates referred to in paragraph (c) of finding 5.

10. On July 13,1957, the plaintiff received from the contracting officer a notice to proceed with the work on contract 1955.

11. The base material, concrete aggregate, and hot-mix aggregate needed by the plaintiff for the construction of the projects covered by contracts 1900 and 1955 were purchased by the plaintiff from the H. B. Llewellyn Sand & Gravel Company and the Las Cruces Redi-Mix Company under the agreements referred to in finding 6.

12. Since it was necessary to provide for the storage of the supplies mentioned in findings 6 and 11 pending their use by the plaintiff in the actual construction work, the plaintiff, with the permission of the commanding officer of the Holloman Air Force Base, established at Holloman stockpiles for such supplies. The stockpiles were located south of the area where the “Taxiways and Aprons” were to be placed in accordance with contract 1900, and west of the area where the “Apron Loading P/AC” was to be placed in accordance with contract 1955. From the base material stockpile, the concrete aggregate stockpile, and the hot-mix aggregate stockpile, it was approximately 600 feet, 700 feet, and 1,100 feet, respectively, over the nearest route to the area where the “Taxiways and Aprons” were to be placed in accordance with contract 1900. The distances from the several stockpiles to the area where the “Apron Loading P/AC” was to be placed in accordance with contract 1955 were substantially greater than the distances mentioned in the preceding sentence.

13. The plaintiff called upon the Glover Distributing Company, under the agreement referred to in finding 7, to transport the base material, the concrete aggregate, and the hot-mix aggregate mentioned in findings 6, 11, and 12 from the respective plants of the H. B. Llewellyn Sand & Gravel Company and the Las Cruces Bedi-Mix Company to the Holloman Air Force Base. The Glover Distributing Company, in turn, made agreements with a number of owners of dump trucks for the hauling of such supplies. Some of the truck owners owned two or more trucks. In such a case, the truck owner drove one truck himself (being referred to hereinafter as an “owner-driver” in connection with the hauling that he did individually) and hired another person or persons to drive his additional truck or trucks (such a person being referred to hereinafter as a “non-owner-driver”). Accordingly, substantial quantities of the base material, of the concrete aggregate, and of the hot-mix aggregate which the plaintiff purchased from the H. B. Llewellyn Sand & Gravel Company and the Las Cruces Bedi-Mix Company in connection with the performance of contracts 1900 and 1955 were hauled by owner-drivers and the non-owner drivers from the respective plants of the H. B. Llewellyn Sand & Gravel Company and the Las Cruces Redi-Mix Company to the stockpiles at the Holloman Air Force Base mentioned in finding 12. The truck owners were compensated by the Glover Distributing Company for each trip (whether made by an owner-driver or a non-owner driver) on the basis of an agreed amount per cubic yard of material hauled.

14. (a) The agreements between the Glover Distributing Company and the truck owners referred to in finding 13 did not include any requirements as to the hours during which the owner-drivers and the non-owner drivers were to work (other than when to start and when to stop), or as to the quantities of material that they were to haul, or as to the route over which the material was to be hauled, or as to the amount of time that was to be consumed per trip. The truck owners were required to furnish their own trucks, oil, gasoline, repairs, and license fees.

(b) The evidence does not disclose the full details of the contractual arrangement between Glover and the owner-drivers. However, the record shows that the owner-drivers were not given a guarantee of a minimum number of hauls; that at times almost 100 such drivers were on the job; that their individual trips, the destination thereof, the number thereof and the number per driver-owner were controlled by Glover Distributing Company.

(c) Glover Distributing Company made payroll deductions (e.g., federal withholding tax, federal social security) for the owner-drivers as it would have for an “employee”. This was done because of the instructions given by defendant to the effect that certified payrolls were required for these drivers as employees.

15. In connection with the hauling operations mentioned in findings 13 and 14, the owner-drivers and their hired drivers spent a relatively small percentage of their time within the boundaries of the Holloman Air Force Base.

All of the truck drivers employed 'by Glover were within the.limits of Holloman Air Force Base for only the amount of tune that was necessary to unload their trucks at the stockpiles. Access to the stockpiles was gained over a one-mile road specially constructed for the purpose. The road was located partially, on Holloman Air Force Base and partially on private property. Unloading usually took about two to three minutes, and no other labor was performed by the truck- drivers. The remaining time was spent driving on public streets or highways and at the material suppliers’ plants. The record does not show where the drivers spent their time while on “standby” or how long the “standby” periods were.

16. After the supplies referred to in findings 6 and 11-15 were stockpiled at the Holloman Air Force Base, all further handling of such supplies was performed by the plaintiff. This included the processing of the various aggregates into concrete and asphalt. It also included the transportation of the concrete and asphalt, and the transportation of the base material, to the areas where they were needed in connection with the placement of the “Taxiways and Aprons” in accordance with contract 1900 and the placement of the “Apron Loading P/AC” in accordance with contract 1955.

17. The plaintiff completed all the work required under contract 1955, and it was accepted by the contracting officer as of December 13,1957.

18. The plaintiff completed all the work required under contract 1900, and it was accepted by the contracting officer as of May 1,1958.

19. (a) In paying the plaintiff for the performance of contracts 1900 and 1955:

(1) The defendant has withheld a total of $6,694.46 on the ground that truck owner-drivers and non-owner drivers (see findings 13-15) allegedly were not paid the full amounts due them as hourly wages and as overtime compensation under the Davis-Bacon Act, the Eight-Hour Laws, paragraphs 20 and 21 of the general provisions of the respective contracts 1900 and 1955 (see finding 2(d)), and the paragraph on “Rates of Wages” in the special conditions of the respective contracts 1900 and 1955 (see findings 2 (f)-(g) and 5(c)), and tbat the total of such deficiencies in hourly wages and overtime compensation due owner-drivers and non-owner drivers amounted to $6,694.46.

(2) The defendant has withheld $2, 520 as the total of the penalties allegedly due the defendant under the Eight-Hour Laws and paragraph 21 of the general provisions of the respective contracts 1900 and 1955 because truck owner-drivers and non-owner drivers were not paid the full amounts of the overtime compensation due them.

(3) The defendant has withheld $140 as penalties allegedly due under the Eight-Hour Laws with respect to the plaintiff’s own employees. The plaintiff apparently concedes the correctness of this withholding, and does not seek the recovery of the $140.

(4) The defendant has withheld the sum of $200 under contracts 1900 and 1955 in order to keep the respective contracts open pending the completion of the proceedings relative to the alleged violations of the Davis-Bacon Act and the Eight-Hour Laws.

(b) The administrative reasoning behind the withhold-ings referred to in paragraph (a) of this finding is outlined in subsequent findings.

20. (a) When the Corps of Engineers issued to the plaintiff on March 20,1958, the final payment estimate under contract 1955, the Corps of Engineers indicated that it was withholding a total of $604.46 from the amount otherwise due the plaintiff. The explanation given for the withholding was as follows:

* * * (3) $100.00 to be withheld pending completion of investigation of violations of the contract labor standards provisions. (4) $140.00 assessed as penalties for 28 separate violations of the Eight-Hour Law by prime contractor. (5) $364.46 to be withheld for restitution payments due to underpayments of employees by a subcontractor. * * *

(b) When the Corps of Engineers issued to the plaintiff on May 23, 1958, the final payment estimate under contract 1900, the Corps of Engineers indicated that it was withholding a total of $8,950 from the amount otherwise due the plaintiff. This amount was said to .be withheld:

* * * pending completion of investigation of violations of the contract labor standards provisions by Glover Distributing Co., a subcontractor: $6,330.00 for restitution payments, $2,520.00 as penalties for 504 separate violations of the Eight Hour Law, and $100.00 to keep the contract open. * * *

21. In a letter which the contracting officer wrote to the plaintiff on April 21, 1959, the contracting officer stated in part as follows:

An investigation conducted by the Albuquerque District into the employment practices of the Glover Distribution [sic] Company, subcontractor under the subject contracts [1900 and 1955] has revealed apparent violations of the Davis-Bacon Act and the Eight-Hour Laws which, if unexplained, would appear to constitute a disregard of obligations to the employees within the meaning of Section 5.6 (b) of the Regulations, Part 5. These apparent violations are described in considerable detail below.
During a conference held in your office at Holloman Air Force Base on 18 October 1958, you were advised that the Secretary of Labor had issued a ruling in a situation identical in principle to the instant case, which is applicable in like maner to the present set of facts. In essence, the ruling states that truck owner-operators such as herein involved are employees within the meaning of the Davis-Bacon Act and Eight-Hour Laws, and are entitled to be compensated for all covered hours worked at the applicable truck driver rate (specified minimum rate per hour). Such compensation is excl/uswe of and in addition to the amownt due these employees for rented of their trucks based on the going rate for rented of such equipment in the area in question.
_ The ruling continues by stating that under these principles, the District will have to make two computations for comparison purposes against the total amount received by the owner-operator covering wages and rental. First, the Contracting Officer should determine the prevailing rate for rental of the type of truck in question. This sum should then be deducted from the total amount received by the employee for the work, to arrive at the amount paid for wages. This balance should then be divided by the covered hours worked to determine the hourly wage rate actually paid. The resultant amount should then be compared with the predetermined hourly wage rate applicable to ascertain whether any underpayments have occurred.
Following the principles set forth in the Secretary of Labor’s ruling, an hourly rate for the type of trucks with drivers was established by using the Estimator’s Master Data Sheet (as compiled by the Southwestern Division and concurred in by the Associated General Contractors). This method was used because of the lack of similar trucking operations in the Alamogordo and Las Cruces, New Mexico areas. Based on the Estimator’s Master Data Sheet rental rates for trucks with driver were found to be as follows:
Dump truck, up to 8 cu. yds-$3. 75
Dump truck, up to 10 cu. yds_ 4.00
Dump truck, up to 12 cu. yds_ 6. 00
Dump truck, up to 15 cu. yds- 7.00
Dump truck, 16 cu. yds. and over_ 8. 00
(It should be noted that the rental rate per hour for each size of truck involved can be obtained by reducing the hourly figure shown above by the specified minimum hourly rate for such truck as contained in the contract specifications).
The investigation into this matter has revealed the delivery or haul tickets, one for each load actually hauled, to be the only source of accurate information as to the work performed by each driver each day. In order to determine the number of hours worked, a study was made of the time required to haul loads from the points of supply to the job site. It was found, by actually timing loads, that the following is a reasonable basis for the length of time per load:
a. Crusher plant near Alamogordo to stockpile at the job site — 1% hours.
b. Sand pile near Las Cruces to stockpile at job site— 3 hours. Using the average time per load as shown above, times the number of loads hauled each day, it is possible to accurately compute the number of hours each driver worked per day. Computations of the amounts of restitution and resulting penalties, as discussed below, are based on the foregoing.
% # % #
Passing now to the non-owner-operators, no equipment rental has been considered for these employees. The amounts found due are the result of counting the number of loads per day times the hours shown for the average haul at the specified minimum hourly rate. As is the case of the owner-operators, these employees, while turning in time worked, actually reported only a portion of the hours worked.
‡ íjí :]{ ‡ #
Based on the foregoing information and circumstances, the investigation has revealed underpayments to 91 employees of the Glover Distributing Company as shown on the attached tabulation and as smnmarized below:
Underpayment
Davis-Bacon Act_$5,224.00
8-Hour Laws_$1, 570.25
Total_$6,794.25
(The tabulation is divided into two groups; first “Group O-O” is comprised of owner-operators, second “Group F-O” is comprised of non-owner-operators.)
In addition, failure to compensate employees for all hours worked in excess of eight per day at one and one-half times the basic rate of pay has resulted in 558 violations of the Eight-Hour Laws for which penalties in the amount of $2(790.00 are assessed. Underpayment of wages plus_ overtime penalties total $9,584.25.
Concerning the assessment of overtime penalties, your attention is invited to that provision of the Act (40 U.S. Code 324) which provides that any contractor or subcontractor aggrieved by the withholding of such penalties shall have the right within six (6) months thereafter to appeal to the head of the department making the contract on behalf of the United States. To expedite action thereon, such appeal, if taken, should be submitted through the contracting officer.
_ On the basis of this investigation, the alleged violations of the Davis-Bacon Act appears [sic] to constitute a disregard of obligations to the employees of the Glover Company within tire meaning of Section 3(a) of that Act. It would also appear that the alleged violations of the Eight Hour Laws constitute wilful and aggravated violations within the meaning of Section 5.6(b) of Department of Labor [Regulations, Part 5. However, in view of the serious nature of the imposition of ineligibility sanctions, I am at this time offering you full opportunity to rebut these allegations. If you wish, you may present in writing such facts in rebuttal and such further arguments as you may care to submit.
If you desire to make such a written statement or submit written argument, please do so within thirty (30) days from your receipt of this letter. While there have been previous discussions in this matter, if you feel that a further meeting will help clarify the situation in any way I shall be pleased to schedule same at your convenience and request.
*****
Under existing law and regulations, I am required to prepare a complete report to the Secretary of Labor on this investigation together with accompanying recommendations in accordance with the above-cited law and regulations. This report will include your written statements, arguments or position relative to these findings. If I do not receive a written reply of [sic] if I do not hear from you within thirty days from your receipt of this letter, I shall submit the report to the Secretary of Labor on the basis of the present record.

22. By means of a communication dated May 21,1959, the plaintiff replied to the letter that is referred to in finding 21. The plaintiff denied that the Davis-Bacon Act and the Eight-Hour Laws were applicable to the truck owner-drivers or to non-owner drivers, because (according to the plaintiff) such persons were not laborers or mechanics and they were not employed or working directly upon the site of the work covered by contracts 1900 and 1955.

23. Under the date of June 30, 1959, the plaintiff wrote a letter to the contracting officer, stating as follows:

We made a general reply on May 21, 1959 to your letter dated April 21, 1959, since which time we laave concluded that a further investigation of the facts surrounding the activities of the truck drivers involved in the captioned matter should be made. For this purpose, we asked Glover Distributing Company to furnish us detailed information covering each truck driver for the period employed in the hauling of material from Las Cruces and Alamogordo to the company’s stockpile at the job site. We have now received detailed reports from Charles A. Glover containing daily analyses of the material hauled in connection with the above job, but it appears to be voluminous and will require additional time to properly evaluate the information furnished.
Will you, therefore, be kind enough to extend the time to September 1,1959 for us to finally answer your charging letter of April 21,1959. We fully expect to supplement the reply made by us on April 21 on or before such date if the time is so extended.

24. By means of a letter dated August 24,1959, the plaintiff supplemented its earlier reply (see finding 22) to the contracting officer’s letter of April 21,1959 (see finding 21), and stated in part as follows:

The prime contractor in its behalf and in behalf of Glover Distributing Company denies that: 1) Glover Distributing Company was or is a subcontractor as that term is used in the Davis-Bacon and Eight-Hour Laws * * *; 2) the truck operators of Glover Distributing Company, in the performance of its transportation services for H. B. Zachry Company were employees of Glover Distributing to the extent that they or either of them were laborers or mechanics; 3) any were employed “directly upon the site of the work”; 4) they were paid less than the prevailing wage for truck drivers when effect is given to gross income or gross earnings from their respective trucks and operations; and 5) there was a willful violation of the Davis-Bacon Act or of the Eight-Hour Law by either H. B. Zachry Company or Glover Distributing Company.
The prime contractor herein and Glover Distributing, although having denied specifically the above mentioned charges do hereby affirmatively contend that: 1) Glover Distributing Company was not and is not a subcontractor under the prime contract as that term is used in the Davis-Bacon Act and Eight Hour Law, in that among other things, Glover Distributing Company was not required to perform any specific part of the work required by the prime contract; 2) the truck-owner operators involved in this proceeding were independent contractors; 3) they were not employees of Glover Distributing Company; 4) they are neither laborers nor mechanics; 5) they were in any event paid more than the prevailing wages for truck drivers in the area of the work when effect is given to the gross earnings from their respective hauling operations; and 6) neither the Davis-Bacon Act nor the Eight Hour Law applies to the truck-owner operators involved in this proceeding.

25. (a) On March 28,1960, the contracting officer replied to the arguments and briefs submitted by the plaintiff in support of its position and that of Glover Distributing Company, tie stated in part as follows:

_ The arguments you advance in support of your position are directed solely toward the interpretation of the Davis-Bacon and Eigbt-Hour Laws statutes made by the Secretary of Labor and which form the bases of the foregoing comments concerning your position. There is no dispute as to the activities of the truck drivers, i.e. the material hauled, origin and destination, etc. I am restrained from making interpretative rulings in labor standards matters because the question of interpretation has been expressly vested in the Secretary of Labor by Beorganization Plan No. 14 of 1950 (15 FB 3176) in the statement “the Secretary of Labor shall prescribe appropriate standards, regulations, and procedures which shall be observed by these agencies”. (Federal Agencies responsible for administration of the labor standards provisions). * * *
Accordingly, I am submitting a full report in this matter, including the brief and/or arguments which you have furnished in support of your position, to the Secretary of Labor for ruling as provided by Section 5.11 of Begulations, Part 5.

(b) After the receipt of the letter of March 28, 1960, and at plaintiff’s request, a conference was scheduled for late in April or early in May 1960. Plaintiff appeared at the meeting with a draft of a document and a request that the document be adopted by the contracting officer as a finding of fact under the “Disputes” article of the contract. Plaintiff stated that it desired the findings in order that it could appeal to the Armed Services Board of Contract Appeals from the contracting officer’s determination with respect to the applicability of the contract labor standard provisions. The contracting officer refused to make such findings on the ground that neither he nor the ASBCA had the jurisdiction of dispute with respect to the coverage of the labor statutes. The evidence is unclear as to the extent of the unresolved factual disputes that then existed between the parties. Further conferences were attended by plaintiff’s personnel director, plaintiff’s attorneys, defendant’s direct labor advisor, and defendant’s attorney. At the meetings, it was agreed that the draft of the document submitted by plaintiff should be used as the basis for the perparation of a stipulation of facts which was to be submitted to the Secretary of Labor (or other authorized official) for his determination of the applicability of the contract labor provisions to the truck drivers involved in this case. After the stipulation, which is quoted in part below, was typed in defendant’s office, it was signed by plaintiff in May and then executed by the contracting officer upon the advice of his staff. He had no personal knowledge of the facts contained therein. The stipulation was enclosed as a part of a report submitted by the Corps of Engineers to the Department of Labor under date of May 20, 1960.

(c) The stipulation provided in pertinent part as follows:

1. H. B. Zachry Company, a Delaware corporation, is the prime contractor with the United States under Contracts Nos. 1900 and 1955. These contracts are construction contracts calling for the construction of taxiways and aprons described therein on Holloman Air Force Base, New Mexico.
2. Among other things, said construction contracts required the prime contractor to furnish and pay for the concrete aggregates, base materials, hot mix material and sand used therein. Said contracts did not specify nor was the government concerned with the source of materials, the mining and processing thereof nor the method or means of transportation of same to the job site, being only concerned with the requirement that the same meet the technical provisions of the specifications contained in said contracts.
8. H. B. Zachry Company purchased the materials in question from two sources: (a) Llewellyn plant at Alamogordo, New Mexico, and (b) a plant near Las Cruces, New Mexico. These sources of supply were operated by established commercial producers of materials and at all times pertinent hereto said materials were purchased by H. B. Zachry Company f.o.b. at the respective plants.
4. H. B. Zachry Company made a contract for the transportation of such materials with Glover Distributing Company of Alamogordo, New Mexico. This agreement was written on a printed form captioned “Subcontract” and called for transportation services only in that Glover Distributing Company was not required to purchase the materials in question nor was it responsible for the quality of the materials nor was it responsible to H. B. Zachry Company for any of the details of the manner and method of transporting these materials, except that it was required to meet the volume required in the progress of the construction requirements of H. B. Zachry Company pursuant to the terms of said two contracts.
5. Glover Distributing Company is a proprietorship of Cecil A. Glover of Alamogordo, New Mexico. The major business in which Glover Distributing Company deals is as gasoline distributor in the Alamogordo area, but he has been engaged in trucking operations generally in the vicinity of Alamogordo for many years, including the hauling of materials on a contract basis for a variety of construction jobs, including government, municipal and state construction works.
6. To fulfill his obligation under the terms of his contract with H. B. Zachry Company to transport the materials required under said prime contracts, he made agreements with various truck owners in the area to haul portions of said materials, paying therefor on the basis of the number of cubic yards of material hauled.
7. The agreement between Glover Distributing Company and each of the truck owner operators was for the transportation of the materials called for from the respective sources named above in Finding No. 3 to Hollo-man Air Force Base as directed or required by H. B. Zachry Company.
8. Glover Distributing Company’s agreement with the truck owners made no requirements as to the hours they were to work (other than when to start and to stop), the quantities of material they were to haul, the route(s) over which they were to haul the same, the amount of time per trip, the condition or types of equipment they would be required to furnish or any other matters pertaining to their operations. The truck owner-operators were required to furnish their own trucks, oil, gasoline, repairs, license fees and show qualifications as being entitled to operate a truck.
9. The route(s) of haul used by the various truck owner-operators were generally as follows: (a) From the Llewellyn plant near Alamogordo, New Mexico: (1) over various streets of the city of Alamogordo to Highway No. 70, a public highway of the State of New Mexico, (2) thence some 13 miles from Alamogordo to a point where a private road enters said highway, which entrance leads to and upon private easements acquired by the prime contractor from private persons for said purposes, (3) over this private road to a point at the entrance to Holloman Air Force Base provided by the . Government for the sole use of the prime contractor and its subcontractors in the hauling and delivery of materials required in the work to be performed under the contracts, and all leading to the prime contractor’s concrete and hot-mix batch plants on Holloman Air Force Base, where such materials were stockpiled except in a few instances, some material was delivered to the actual construction area; (b) From the Las Cruces site some 70 miles from Holloman Air Force Base, the trucks traveled over Highway 70 to the same private road and thence to a point to the said entrance to the Base to the said stockpiles at the contractor’s batch and hot-mix plants within the boundaries of Holloman Air Force Base, but in an area removed from the actual construction area.
10. Under the terms of said prime contracts, the contractor operations and all of its personnel were closely restricted to the site of the actual construction work and permission from the government was required for entry into any other security area on the Holloman Air Force Base.
11. At the time or times in question, the contracts for the hauling of materials on a cubic yard basis were customary and usual in construction work in the area of Alamogordo and were frequently entered into for transportation of materials for a wide variety of construction work, including construction projects of the United States and the State of New Mexico.
12. It is common knowledge that commercial sup-Sliers or material producers in the area in question requently sell their materials to contractors and others on a delivery basis and also make contracts with truck owners for the delivery thereof to said purchasers on a cubic yard basis.
13.Glover Distributing Company did not maintain an office or headquarters on Holloman Air Force Base, its usual place of business being in the downtown area of Alamogordo, New Mexico.
14.The Glover Distributing Company gave each truck operator a time card on which to record the time worked each day and in each instance the Glover Distributing Company paid each truck operator for the hours worked as shown on the time cards turned in by each truck operator at the specified minimum hourly rate. For the truck owner-operators, the gross earnings of the truck, exclusive of truck rental, equalled or exceeded payment at the minimum wage rate applicable to truck drivers in the area as predetermined by the Secretary of Labor. Each truck operator was given a delivery or haul ticket by the material producer for each load hauled. These tickets, together with the time card, were turned in to the Glover Distributing Company. The gross weekly earnings for each truck were computed from the haul tickets.
15. It is reasonably correct to say and it is further found that the truck drivers in question spent approximately 90 percent of their time at the sources of material and enroute with the materials to the point of delivery at Holloman Air Force Base.
16. Said prime contracts have been fully completed by the prime contractor and the work has been accepted by the government. All sums of money payable under the terms of said prime contracts have been paid to said prime contractor, save and except the following: (a) $9,314.46 withheld pending completion of investigation of violations of the Contract Labor Standards Provisions by the subcontractor Glover Distributing Company allocated as follows: (1) $6,330.00 for restitution payments, if any, (2) $2,520.00 as penalties for alleged violations of 8-hour law, (3) $364.46 withheld for under payments, if any, of employees of Glover Distributing Company under Prime Contract No. 1955, and (4) $100.00 to keep the contracts open.
17. That the truck owner operators employed additional drivers where they owned and operated two or more trucks on the job in question.

(d) During the conferences and at the time the stipulation was prepared, plaintiff realized that defendant had consistently taken the position that the truck drivers did not receive the minimum wages specified by the terms of the contract. The evidence establishes that paragraph 14 of the stipulation was intended by the parties to mean the truck drivers were paid the minimum contract wages provided: (1) the hours of work reported on Glover’s payrolls were correct, and (2) that one disregards defendant’s contention that a fair market value should be allowed for truck rental.

The remaining paragraphs of the stipulation correctly stated the meaning of the parties.

26. Under the date of April 3, 1961, the Solicitor of the Department of Labor, acting for the Secretary of Labor, rendered a decision in the plaintiff’s case. The decision stated in part as follows:

Ninety drivers were thus found [by the Corps of Engineers to have been] underpaid $5,552.19 under the Davis-Bacon Act requirements of the contracts, and $1,142.00 under the Eight Hour Laws requirements of the contracts. In addition, Eight Hour Laws penalties totalling $2,645.00 were computed.
* * He * *
We have reviewed the record including the stipulations and contentions of the contractor submitted with your request for our ruling in this matter, in the light of our previous decisions in cases involving similar factual situations. It is our conclusion that the investigative findings of your agency are fully in accord with the facts and applicable law. Since the computations were made pursuant to the previously approved method to be employed in cases of this type, no further comment is deemed necessary in this regard.
With respect to the three contentions of the prime contractor, set forth in his reply to your demand for restitution, it is our conclusion that the record in this case clearly establishes (1) that the Glover Company was a subcontractor under the two construction contracts in question; (2) that the owner-operators and the non-owner-operators here involved were laborers and mechanics within the meaning of the Davis-Bacon and related Acts; and (3) that the work performed by the drivers for Glover was performed directly on the site of the contract work within the meaning of the Davis-Bacon Act and the contract provisions. Since the legal bases for these conclusions have been fully set forth in previous opinions and rulings issued by this Department to various agencies in cases involving similar factual situations, and since those opinions and rulings have been given wide distribution to all interested parties, including Federal and State agencies, and contractor and employee organizations, it is not considered necessary to here repeat in detail the legal justification for the above conclusions of coverage. Bather, it is deemed preferable to furnish you two copies each of these coverage decisions so that, when you transmit this ruling to prime contractor Zachry, one copy of each of these pertinent decisions may also be furnished the contractor for his information. * *
It would be appreciated if you would notify prime contractor Zachry of our conclusions as set forth above, furnishing the firm also copies of the six decisions cited above, and initiate prompt corrective action on the basis of the investigation findings. It would also be appreciated if you would furnish this Office as soon as possible your final report and recommendations as to any further enforcement action deemed warranted in this case, based upon the record as now constituted and as viewed in the light of the corrective action which may be accomplished following notification of the prime contractor of this decision.

27. Under the date of June 22, 1961, the contracting officer forwarded to the plaintiff the decision referred to in finding 26, with a covering letter.

28. On July 12, 1961, the plaintiff addressed a letter to the contracting officer, stating in part as follows:

Neither H. B. Zachry Company nor C. A. Glover Distributing Company acquiesces in the above ruling by the Department of Labor, desiring to pursue further any and all remedies that may exist in their favor for relief.
We have reviewed all correspondence from your office directed to H. B. Zachry Company and/or C. A. Glover Distributing Company concerning and covering the matter at issue and failed to find a final decision from the Contracting Officer.
It is, therefore, respectfully requested that you review and reconsider the matters set forth in our letters and briefs dated 21 May and 24 August, 1959, supporting, among other things, the proposition that the Davis-Bacon and Eight Hour Laws do not apply to the truck owners and drivers involved in hauling material to the site of the work, since they were not employed “directly upon the site of the work,” as that term is used in the Acts.
It is further requested that you consider the Department of Labor letter and ruling of 8 April, 1961, as advisory only, disregarding any advice therein based on a construction or interpretation of the Davis-Bacon and Eight Hour Laws, since the Department of Labor is not authorized under Reorganization Plan No. 14 of 1950 to construe or interpret the Davis-Bacon Act and the Eight Hour Law, its sole responsibility and duty being limited to prescribing “appropriate standards, regulations and procedures'” in the proper application and enforcement of the Acts, thereby making it evident that the Department of Labor has no duty or authority to construe and interpret these laws, let alone misconstrue and misapply said statutes.
We request that in view of the above and foregoing and in view of the facts of this case you deny the application of the Davis-Bacon and Eight Hour Laws so far as they cover or relate to the employees of C. A. Glover Distributing Company engaged in the hauling of the material in question from the various sources to the stockpiles at Holloman Air Force Base, and further request that you determine and thereby cause to be released to H. B. Zachry Company all sums of money withheld by reason of this controversy.
In the alternative, and if we be mistaken in our view that your letter, 22 June, 1961, above referred to, is not a final decision of the Contracting Officer, and should it be determined that such letter is a final decision, then in such event this letter shall serve as notice of appeal to the Corps of Engineers, Claims and Appeals Board.

29. On July 19,1961, the contracting officer replied to the plaintiff’s letter of July 12,1961, stating in part as follows:

In reply to your letter of July 12,1961, you are correct in your view that my letter of June 22, 1961, was not a formal decision of the Contracting Officer, i.e., within the ambit of the disputes clause of the contracts or from which any appeal must be taken.
I am precluded from rendering any disputes clause or other appealable decision on any of the issues which you have raised since this case has been referred by the Chief of Engineers to the Secretary of Labor for appropriate ruling and interpretation. The Department of Labor has ruled that it concurs in the specific withholding of $5,552.19 for restitution due employees under the Davis-Bacon Act and $1,142 under the Eight Hour Laws requirements, in addition to $2,645 penalties. Therefore, the question of the propriety of that specific withholding has been disposed of so far as the Department of the Army is concerned. Also, the appellate authority under the contracts, following this same rule, can be expected to dismiss any appeal based on that specific withholding which you might now attempt to docket. * * *

30. (a) In determining the compensation paid to the owner-drivers, Glover first calculated their gross compensation. The number of cubic yards of a particular type of material delivered to the jobsite was shown on tickets given to the drivers by the supplier of the material and the yardage was then multiplied by a fixed rate for each such type of material ; the rate related to the distance the material was transported. Such gross compensation was then paid in two separate checks. The first check, which represented labor, was calculated by multiplying the number of hours shown on the time cards which each driver submitted by the contract hourly wage rate, and in some cases by a higher rate. The amount of the labor check was then subtracted from the total gross compensation, and the balance was paid in a second check which was denominated “truck earnings”. The latter amount fluctuated and was not necessarily related to the size of the truck or the hours it was in use. The contract between the Glover Distributing Company and the drivers was based upon the amount of material actually delivered and was not concerned directly with the rental of the truck or the number of hours required to make deliveries of the material.

(b) The non-owner-drivers were paid on an hourly basis for the number of hours shown to have been worked on a time card kept by each non-owner-driver. The amount he received was computed by multiplying the hours shown on these time cards by the contract wage rate or, in some cases, at a higher wage rate.

31. (a) Defendant’s determination of the underpayments of the wages involved in this case was based primarily on two factors: (1) the estimated average time spent by each truck driver in making a round trip from the material suppliers to the air base and (2) a schedule showing the rental rate for trucks with drivers; the schedule appeared in the Estimator’s Master Data sheet, a document prepared by the Corps of Engineers, Southwestern Division and the Association of General Contractors for use in estimating construction costs of projects in the Southwestern Division.

(b) Defendant’s labor investigator followed various truck drivers on their trips between the supply base and the air base on several occasions and recorded the time required for the truck drivers’ trips. He also spent about 4 days in making observations at the main gate of the Holloman Air Force Base and in timing certain operations. He tabulated bis observations and then calculated that the average time required for a truck to make a round trip between the air base and tbe material suppliers was as follows:

(1) H. B. Llewellyn Sand & Gravel Company, Alamogordo, New Mexico — 1:15 hours;
(2) Las Cruces Redi-Mix Company, Las Cruces, New Mexico — 3 hours.

(c) The defendant attempted to establish truck rental rates by an area survey but abandoned the survey when it found that Glover Distributing Company had almost every truck in the area under contract. As a result, the defendant used the Estimator’s Master Data sheet, referred to above, in determining hourly rental rates for dump trucks with drivers as follows:

Capacity — 8 yards or less_$3. 75
“ —9 and 10 yards_ 4.00
“ —11 and 12 yards_ 6.00
“ —13, 14, and 15 yards_ 7.00
“ —16 yards_ 8.00

32. (a) In calculating the amount of the wage underpayments to the owner-drivers defendant multiplied the number of daily hauls made by each truck driver (as shown in Glover’s haul records) by the average time required by the truck driver to make the round trip between the supplier of the material and the air base, as estimated by defendant’s labor investigator (finding 31(b)). The daily totals of hours worked as thus determined (including straight time and overtime hours) were added to produce a weekly total. The weekly total was then multiplied by the combined truck-labor rental rate shown in the Estimator’s Master Data sheet for the size of truck involved (finding 31 (c)). To this sum which defendant considered as a straight time rate for truck and driver, was added the result of multiplying the number of overtime hours by one-half of the contract labor rate. The grand total represented what defendant alleges to be the total compensation due for the particular week. Defendant then determined the amount of underpayment, if any, by subtracting the compensation paid to the driver as shown on Glover’s payrolls from the grand total.

(b) In its computation with respect to the wages due the non-owner-drivers, defendant multiplied the number of hauls each driver made per day by the average time required for each round trip as determined by defendant’s labor investigator. When the weekly total of hours was thus ascertained, it was multiplied by the contract wage rate to determine the total wages due on a straight time basis. To the sum was added the overtime premium, which was calculated in the same way as for the owner-drivers. The amount of the alleged underpayment was arrived at by subtracting the wages actually paid, as shown by the payrolls, from the amount due as determined by defendant in its computations.

33. Plaintiff’s evidence with respect to the number of hours worked by each truck driver consists of Glover’s payrolls and the evidence shows that the payroll records correctly reflect the entries after the number of hours worked as shown on the individual time cards prepared by each driver. Both plaintiff and Glover Distributing Company accepted the records shown on the drivers’ time cards at face value. Prior to defendant’s investigation, no question had been raised about the accuracy of the time cards, and neither plaintiff nor Glover Distributing Company had made an investigation to determine the accuracy of these individual records. Although some speculative evidence was offered regarding the motives of the drivers to underestimate or overestimate the hours worked, the evidence is not sufficient to establish that this was intentionally done in any case. The truck drivers interviewed or who testified stated that they were paid according to minimum wage rates posted at the site.

34. Plaintiff did not introduce any independent evidence of the fair rental rate for dump trucks in the area. It contends that, since Glover was the major trucker of building materials in the area, its rental payments represented the prevailing truck rental. However, as stated in finding 14, plaintiff did not expressly contract for the rental of trucks. It agreed to pay Glover for the quantity of material delivered to the site, without regard to the time worked or the value of the truck hire.

35. The time tabulations made by defendant’s investigator, who determined the average time required by a truck for each round trip, were not retained by him or introduced in evidence. Therefore, the defendant did not offer any evidence as to the minimum actual or maximum actual time required for a particular truck on any round trip. The evidence offered by defendant does not show how many days were covered in the sampling processes, nor what account was taken of time lost in traffic congestion on the days measured as opposed to the time lost by reason of traffic conditions on days not measured. Defendant’s evidence also does not show whether the waiting period in the suppliers' plant was normal or abnormal during the days sampled. Some of the owner-drivers lived near the Llewellyn plant in Alamogordo. Their initial trip in the morning was a haul to the air base, and their last trip in the evening would be to go home. In defendant’s calculations no deduction was made for the approximately 37 minutes’ time required each day for this one-way trip home.

36. In the AJamogordo, New Mexico, area, it is a frequent commercial practice for the suppliers of building material to sell such material on the basis of delivery to the site. It is also a frequent commercial practice in the same area for the supplier or the building contractor to contract for the transportation of such materials to the jobsite and to pay for the transportation at a flat rate per cubic yard of material hauled between two stated points.

37. The greater weight of the evidence shows that while there are some inaccuracies in the payrolls of the Glover Distributing Company, these records show the number of hours worked by the truck drivers in question and constitute the only evidence of the actual working time spent by each truck driver. The average estimated time used in defendant’s calculation necessarily fails to take into account many instances in which the actual time required by truck drivers in making .round trips was less than the average.

38. The greater weight of evidence shows that the fair rental rates per hour for dump trucks without drivers in the Alamogordo area during the period in controversy were as follows:

Capacity — 7 yards and less-$1.78
“ —8 yards_ 1. 66
“ —9 and 10 yards- 1.91
“ —11 and 12 yards- 3.91
“ —13, 14, and 15 yards- 4.91
“ —16 yards and over- 5.72

39. If the truck drivers were under the statutory protection of the Davis-Bacon Act and the Eight-Hour Daws, the evidence shows that when deductions are made for the fair rental value of the trucks used, there were a number of instances in which plaintiff failed to pay the wages called for under the provisions of the two acts. Further proceedings will be required to determine the number and amounts of such underpayments.

40. This action was instituted by plaintiff to recover $9,414.46 of the amounts withheld by defendant under contracts 1900 and 1955.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover in the amount of nine thousand three hundred fourteen dollars and forty-six cents ($9,314.46), and judgment will be entered to that effect. 
      
       The failure to provide for appellate procedures has received comment and a proposal for correction, pp. 909, 1078-1084, Hearings, Special Subcommittee on Labor, Committee on Education and Labor, House of Representatives, 87th Cong. 2d Sess., “A General Investigation of the Davis-Bacon Act and Its Administration”, June-August 1962 [hereinafter referred to as “1962 Hearings”]. The hearings are a valuable source of general information on the act.
     
      
       Originally the boards of contract appeals refused jurisdiction of cases involving Davis-Bacon coverage problems, see e.g. Noonan Constr. Co., 58—2 BCA para. 1833 (ASBCA 1958). However, it is not clear to what extent purely factual questions arising under the contract labor provisions may be open to the boards, Gersten Constr. Co., 60-1 BCA para. 2602 (ASBCA 1960). The Attorney General concurs in the paramount jurisdiction of the Department of Labor, 41 Op. Atty. Gen. 488 (1960). The Comptroller General disagrees, and asserts that under Reorganization Plan No. 14, 5 USC 133z-15, the primary adjudicatory authority lies with the contracting agencies in a situation lite the one before us and that the Department of Labor is merely the advisor of the agencies and the promulgator of regulations, Ms. Comp. Gen. B-147602, January 23, 1963; Ms. Comp. Gen. B-148076, July 26, 1963.
     
      
       The cases cited by the parties involve other statutes including the Fair Labor Standards Act, 29 U.S.C. 201; the Heard Act, 28 Stat. 278, and the Miller Act, 40 U.S.C. 270a. None of the cases involve the resolution of the status of an independent trucking contractor who is engaged solely in hauling to the jobsite standard commercial supplies furnished by a materialman who sells to the general public.
     
      
       H. Rep. No. 1756, 74th Cong. 1st Sess.; S. Rep. No. 1155, 74th Cong. 1st Sess.
     
      
       75 Cong. Rec. 12366 (1932); 102 Cong. Rec. 10967 (1956).
     
      
       The regulations, which are found in 29 C.F.R. Part 5, contain the following pertinent provisions:
      “§ 5.2 Definitions. — As used in the regulations in this part:
      * * * * *
      “‘(f) The terms “building” or “work” generally include construction activity
      as distinguished from manufacturing, furnishing of materials, or servicing and maintenance work .* * * The manufacture or furnishing of materials, articles, supplies or equipment (whether or not a Federal or State agency acquires title to such materials, articles, supplies, or equipment during the course of the manufacture or furnishing, or owns the materials from which they are manufactured or furnished) is not a “building” or “work” within the meaning of the regulations in this part unless conducted in connection with and at the site of such a building or work * * *
      “‘(g) The terms “construction”, “prosecution”, “completion”, or “repair” mean all types of work done on a particular building or work at the site thereof, * * * in the construction or development of the project, including without limitation, altering, remodeling, painting, and decorating, the transportation of materials and supplies to or from the building or work by the employees of the construction contractor or construction subcontractor, and the manufacturing or furnishing of materials, articles, supplies or equipment on the site of the building or work, * * »
      *****
      “ ‘(i) Every person paid by a contractor or subcontractor in any manner for his labor in the construction, prosecution, completion, or repair of a public building or public work, or building or work financed in whole or in part by loans, grants or guarantees from the United States, is “employed” and receiving “wages”, regardless of any contractual relationship alleged to exist.’
      “§ 5.11 Rulings and interpretations.- — All questions arising in any agency relating to the application and interpretation of the regulations contained in this part and of the Davis-Bacon Act, as amended, and as extended to the labor standards provisions of the Federal-Aid Highway Act of 1956, of the Copeland and Anti-Kickback Acts, the Eight-Hour Laws, as amended, and the labor standards provisions of the following acts, the National Housing Act, as amended, the Housing Act of 1949, as amended, the Hospital Survey and Construction Act, the Federal Airport Act, as amended, the School Survey and Construction Act of 1950, and the Defense Housing and Community Facilities and Services Act of 1951, as amended, and the Federal Civil Defense Act, as amended, shall be referred to the Secretary of Labor for appropriate ruling or interpretation. The rulings and interpretations of the Secretary shall be authoritative and may be relied upon as provided for in section 10 of the Portal to Portal Act of 1947. Requests for such rulings and interpretations should be addressed to the Secretary of Labor, united States Department of Labor, Washington 25, D.C.
     
      
       Op. Sol. Lab. to Construction Division, War Department, Sept. 15, 1942. 1962 Hearings, pp. 54, 830.
     
      
       Op. Sol. Lab. to Army Corps of Engineers, December 26, 19S7; Op. Sol. Lab. No. DB — 15, Oct. 13, 1961; Op. Sol. Lab. DB-30, October 15, 1962; Op. Sol. Lab. DB-38, July 8, 1963.
     
      
       See footnote 8, supra; see also Op. Sol. Lab. to Charles A. Horslty, June 8,-1956.
     
      
       Op. Sol. Lab. to Commissioner, State Highway Department of New Jersey, Sept. 26, 1958.
     
      
       Op. Sol. Lab. to Alex M. Barman, Jr., October 6, 1960; Op. Sol. Lab. to Charles A. Horsky, November 27, 1957; See also Op. Sol. Lab. No. DB-36, June 24, 1963.
     
      
       The Labor Department’s regulations declare that “the terms ‘construction’, ‘prosecution’, ‘completion’, or ‘repair’ means all types of work done on a particular building or work at the site thereof, * * * in the construction or development of the project, including, without limitation, altering, remodeling, painting, and decorating, the transporting of materials and supplies to or from the building or worh by the employees of the construction contractor or construction subcontractor, * * 29 C.F.R. § 5.2(g) (emphasis added).
     
      
       under the Act and regulations, it is immaterial whether the drivers were technically “employees” of Glover or were “independent contractors.” See 29 C.F.R. § 5.2 (i).
     
      
       The drivers spent at least 10% of their time on Holloman Air Force Base. Holloman was designated in the contracts as the place of performance. A special one-mile road, used by these drivers, was constructed, partially on the Base and partially on private property (which could be said, for this purpose, to be part of the Base). The contracts specifically contemplated use by plaintiff and its subcontractors of parts of the Base, including roadways. In addition, the “Scope of Work” clause declared that “the work to be performed under this contract consists of furnishing all plant, materials, equipment, supplies, labor, and transportation * * *.”
     
      
       The record does not contain any written request from the plaintiff for an explanation regarding the specifications mentioned in finding 2 or the specifications mentioned in finding 5.
     
      
       Presumably, In view of tbe different distances Involved, the yardage rate on a trip from the plant of the H. B. Llewellyn Sand & Gravel Company to the Holloman Air Force Base was different from the yardage rate on a trip from the plant of the Las Cruces Redi-Mix Company to the Holloman Air Force Base, although this is not clear from the evidence in the record.
     