building capable of withstanding the pressures associated with coolant expulsion and of preventing fission product leakage to uncontrolled atmosphere. There will be a considerable amount of structural steel framing and concrete foundation work. Utilities will be provided to the building, and 1,300 feet of railroad track will be laid from a take-off point of an existing track. The remote control room will be a modification of a portion of an existing building, a part of the FET. The direct labor cost estimated for this work is $3.1 million.

III. How Work to be Performed

A. Reactor System

The reactor system, as described in II A. above, will be assembled in the 607 Building by Phillips Petroleum Company (Phillips) and Idaho Nuclear Company (INC) under existing contracts with the AEC as work which is not subject to the Dacia-Bacon Act.

Those employees of Phillips and INC represented by a Collective Bargaining Agent are represented by the Oil, Chemical, and Atomic Workers.

B. Containment Facility

The containment facility, as described in II B. above, will be constructed by the M. W. Kellogg Company under an existing contract with the AEC as work which is subject to the Davis-Bacon Act.

Those employees of Kellogg represented by collective bargaining agents are represented by the Building and Construction Trades.

The matter in issue is whether the work described in I A. above (assembly of the reactor system), to be performed by Phillips and INC, is work subject to the Davis-Bacon Act. ***

V. AEC Determination of Coverage

Determination as to the application of the Davis-Bacon Act to AEC contract work performed at NRTS is a function delegated by the General Manager of the AEC to the Manager of the AEC Idaho Operations Office. In 1963 the Manager, Idaho Operations Office, determined that the assembly of the reactor system, work described in II A. above, trga not work subject to the Davis-Bacon Act and that the construction of the containment facility, work described in II B. above, was work subject to the Davis-Bacon Act. This determination was made after study and recommendation by the Idaho Davis-Bacon Committee consonant with AEC Procurement Regulations 9-12.4. In June 1968, AEC Headquarters reviewed the work in question and the basis of the determination by the Idaho Manager and concurred in that determination.

The AEC Idaho Davis-Bacon Committee is composed exclusively of AEC employees of long experience in the feld of construction and with the AEC DavisBacon criteria. Each AEC Davis-Bacon determination is based upon comprehensive knowledge of the factual situation involved and careful application of the AEC criteria and other appropriate guides. The determination in question here received very careful attention. This determination is histerically consistent with all prior work of this nature at NRTS and is not a departure or extension of the application of the AEC criteria.

VI. Detailed Description of Work Determined sa Nom-entered

All of the following described work with the exeption of the cold tests (Nonnuclear core tests) and the hot test atkar qre tests, which are the final steps in the experiment, will be performed in the Art Ball Line

Upon procurement and receipt of the reactor pressure ressed it will be set on a cradle which will be fabricated in the machine and sheet metal shops. After placement of the reactor vessel, instrument access bottles will be welded into place. The vessel will then be hydrostatically tested up 300PSL

Assuming satisfactory ompletion of the hydrostatit rest, the exterior of the vessel will be extensively instrumented Following installative of instrumentation the reactor vessel will be insulated. Insulation will be installed while the reactor vessel is setting on its cradle. Shielding consisting of water and lead will then be placed around the reactor vessel.

While the work described ab re is being carried out, the two railroads cars will be fitted together and a second cradle will be fabmated and assembled on the railroad cars for receipt of the reactor vessel. The two rained cars (dolly) will

then be instrumented. In order to lift the pressure vessel and shielding as a unit, a support structure will be designed and fabricated to accommodate the lifting and movement of the vessel onto the dolly. The vessel will then be lifted by overhead cranes onto the dolly. Subsequently, the framing, piping, and additional instrumentation will be placed upon the dolly and reactor vessel. Concurrently with the above described operations, the reactor internals will be assembled, measured, and tested for installation in the vessel. Upon installation, further extensive instrumentation will be made.

At this point the "reactor system" will be moved from the cold assembly area of the 607 Building into the hot shop area where remote handling equipment will simulate a disassembly of the reactor system to test whether the remote control equipment can cope (i.e., take apart) with the geometric configuration of the assembly. If it cannot, the reactor system will be returned to the cold assembly area of the 607 Building, disassembled, and modified.

When the reactor system's assembled configuration meets the disassembly requirements, it will be moved on the dolly the one and a quarter (14) miles into the containment building where it will be plugged into utilities and instrumentation contained in the remote control building. A number of cold tests with a non-nuclear core will be performed. If these tests show anything wrong with the materials, workmanship, or design, the system will be unplugged, and returned to the 607 Building for correction. Ultimately the system will be in proper condition for the nuclear test in the containment building. After the nuclear test, the "burned out" reactor and dolly will be partially decontaminated, unplugged, and moved back to the hot shop in the 607 Building, where the reactor will be disassembled and the effects of the test studied.

Pertinent Federal Procurement Regulations defining the applicability of the Davis-Bacon Act are as follows:

1-12.402 Applicability.

The requirements of this Subpart 1-12.4 apply to contracts for construction, and, under some circumstances, to other types of contracts involving construction. 1-12.402-1 Construction contracts.

(a) A contract is for construction if it is solely or predominantly for construction, alteration, or repair (including painting and decorating) of a public building or public work. The appropriate clauses set forth in this Subpart 1-12.4 shall be included in such contracts

(1) These requirements are applicable only if the construction work is, or reasonably can be foreseen to be, performed at a particular site, so that wage rates can be obtained for the locality (see § 1–12.404–2).

(2) These requirements are not applicable to contracts for the construction or repair of vessels, aircraft, or other kinds of personal property.

(3) These requirements are not applicable to contracts requiring construction work which is so closely related to research, experiment, and development that it cannot be performed separately, or which is itself the subject of research, experiment, or development.

(4) These requirements are applicable to the manufacture or fabrication of construction materials and components on the site by a construction contractor or subcontractor under a contract otherwise subject to these requirements, but are not applicable to manufacturing or furnishing of equipment, components, or other materials.

(b) Under such contracts for construction, the requirements apply only to work performed by mechanics and laborers at the site of the work.

(1) Mechanics and laborers are those working predominantly with their hands or with construction tools and equipment. The requirements do not apply to office workers, superintendents, technical engineers, or scientific workers, but they do apply to cooks, storekeepers and working foremen. The requirements apply to mechanics and laborers whether they are employed by the prime contractor or by a subcontractor of any tier.

(2) The site of the work may include the sites of the job headquarters, storage yards, prefabrication or assembly yards, quarries or borrow pits, batch plants, and similar facilities if they are set up for and serve exclusively the particular construction operation and are reasonably near the construction site. Transportation of materials, equipment, or personnel to and from the construc

tion site by employees of construction contractors or subcontractors is covered by the requirements; however, such transportation by common carriers, material suppliers, or manufacturers is not subject to the requirements.

The AEC has issued labor standards regulations in implementation of the Federal Procurement Regulations. See Subpart 9-12.4, Title 41 of the Code of Federal Regulations. Pertinant sections of these regulations, cited by the Solicitor of Labor in support of his opinion, are as follows:

9-12.401-50 Department of Labor Approval.

The Department of Labor has previously reviewed and approved the criteria, standards, and guides set forth in §§ 9-12.402, 9-12.450 and subsection 9-12.404-2 and the contract clause in § 9-12.403-50.

9-12.402-52 Administrative controls and criteria for application of the DavisBacon Act in operational or maintenance activities.

(a) Particular contracts or work items falling within one or more of the following criteria will be classified as non-covered.

(5) Experimental development of equipment, processes and devices, including assembly, fitting, installation, testing, reworking, and disassembly. This refers to equipment, processes and devices which are assembled for the purpose of conducting a test or experiment. The design may be only conceptual in character, and professional personnel responsible for the experiment participate in the assembly. Specifically excluded from the category of experimental development are buildings, building utility services, structural changes, and modifications to building utility services-as distinguished from temporary connections thereto. Also specifically excluded from this category is equipment to be used for continuous testing, e.g., a machine to be continuously used for testing the tensil strength of structural members. ***

(6) Experimental work in connection with peaceful uses of nuclear energy. This refers to equipment, processes and devices which are assembled and/or set in place and interconnected for the purpose of conducting a test or experiment. The nature of the test or experiment is such that professional personnel responsible for the test or experiment and/or the data to be derived therefrom necessarily must participate in the assembly and interconnections. Specifically excluded from experimental work are buildings, building utility services, structural changes, drilling, tunneling, excavation and backfilling work which can be performed according to customary drawings and specifications, and utility services or modification to utility services-as distinguished from temporary connections thereto. Work in this category may be performed in mines or in other locations specifically constructed for tests or experiments * *

9-12.450-1 General.

Section 9-12.402-52 necessarily uses general language, and in some cases the application of the criteria discussed therein to particular situations may not be clear. Therefore, this subsection covers more specifically some of the areas of particular concern to AEC and is promulgated to clarify the application of the criteria.

9-12.450-2 Specific examples.

The following are applications of the regulations to particular situations. Additional narrative statements describing items of work and applicability of the Davis-Bacon Act will be developed from time to time and added to this subsection.

(h) Experimental installations. Within AEC programs, a variety of experiments are conducted involving materials, fuels, coolants, processes, equipment, etc. Certain types of situations where tests and experiments have sometimes presented coverage questions are described below:

(3) Reactor component experiments. Other experiments are carried on by insertion of experimental components within reactor systems without the use of a loop assembly. Illustrative of reactor facilities erected for such experimental purposes are the special power excursion test reactors (SPERT) at the National Reactor Test Site, which are designed for studying reactor behavior and performance characteristics of certain reactor components. Such a facility may consist of a reactor vessel, pressurizing tank, coolant loops, pumps, heat exchangers, and other auxiliary equipment as needed. The facility also may include sufficient shielding to permit work on the reactor to proceed following a short period of power operation and buildings as needed to house the reactor and its auxiliary equipment. The erection and on-site assembly of such a reactor facility is covered work, but the components whose characteristics are under study are excluded from coverage. To illustrate, one of the SPERTS planned for studies of nuclear reactor safety is designed to accommodate various internal fuel and control assemblies as required to conduct a particular test. Accordingly, the internal structure of the pressure vessel is so designed that cores of different shapes and sizes may be placed in the vessel for investigation, or the entire internal structure may be easily removed and replaced by a structure which will accept a different core design. Similarly, the control rod assembly is arranged to provide for flexibility in the removal of instrument leads and experimental assemblies from within the core.

(i) Construction site contiguous to an established manufacturing facility. As AEC-owned property sometimes embraces several thousands of acres of real estate, a number of separate facilities may be located in areas contiguous to each other on the same property. These facilities may be built over a period of years, and established manufacturing activities may be regularly carried on at one site on the property at the same time that construction of another facility is underway at another site. On occasion, the regular manufacturing activities of the operating contractor at the first site may include the manufacture, assembly and reconditioning of components and equipment which in other industries would normally be done in established commercial plants. While the manufacture of components and equipment in the manufacturing plant is noncovered, the installation of any such manufactured items on a construction job is covered.

Pursuant to the request of the International Brotherhood of Electrical Workers and the Building and Construction Trades Department of the AFL-CIO, the Solicitor of Labor on October 14, 1966, issued an opinion (DB-52) to the AEC Director of the Office of Industrial Relations that the assembly work in question was subject to the DavisBacon Act. The Solicitor reasoned that "on-site assembly of manufactured components" and subsequent installation as a portion of a public work has long been considered subject to the Davis-Bacon Act. "Thus, the erection of a $3 million concrete building together with the on-site assembly and permanent installation therein of a 'conventional' 40-ton nuclear reactor ordinarily would constitute the construction of a public work of the United States within the meaning of that Act." The mere fact that the reactor in this case is a part of a mobile system to be used for experimental purposes did not remove, in his judgment, its assembly and fabrication from the ambit of the act. This conclusion, in the Solicitor's opinion, was supported by the AEC regulations relating to SPERT (section 9-12.450-2 (h) (3)), which admittedly was covered work. The description of the reactor in question which he had been furnished, he stated, revealed no significant differences between it and the SPERT reactor. He noted that

313-968 O-69-15

both reactors are assembled for use in an experiment and are designed to accommodate control assemblies and measuring instruments to facilitate their employment in various tests. "We are persuaded," he stated, "that these accommodations in design do not render the subject reactor of such an experimental character as to exclude coverage of its assembly under the considerations stated in AECPR 9-12.402–52 (a) (5) and (6).”

The Solicitor concluded his opinion as follows:

Finally, the fact that the assembly of the reactor is to take place in an existing AEC facility (Building 607) a little over a mile from the containment building is not decisive of coverage. The reactor itself is a public work of the United States. No argument is made to the contrary. Its major components will be procured from manufacturing firms throughout the country and will be fabricated and assembled in Arco, we are informed, by two large independent contractors under existing AEC contracts. The place of its assembly and fabrication in Building 607 is its own job site. That unrelated AEC work may be performed there by others contemporaneous with its assembly is, under these circumstances, immaterial.

For these reasons, we have concluded that the assembly of the subject reactor constitutes "construction" within the meaning of the Davis-Bacon Act.

On January 4, 1967, the AEC and Idaho Nuclear Corporation jointly petitioned the Wage Appeals Board for a review of the Solicitor's opinion. The Commission and Idaho Nuclear argued before the Board, inter alia, that: (1) the work in question is "experimental work" within the meaning of AEC Procurement Regulations 9-12 and Federal Procurement Regulations 1-12.402–1 (a) (2) and (3) and therefore by regulation is excluded from coverage under the DavisBacon Act; (2) the work in question does not constitute "construction work" or a "public work" within the meaning of the Davis-Bacon Act; (3) the work in question is a manufacturing activity excluded from the coverage of the Davis-Bacon Act; and (4) the work in question is significantly different from work performed as covered work under the Davis-Bacon Act in connection with SPERT and the assembly of the reactor system in this case for the LOFT is not the type of work which has ever been performed under a contract subject to the Davis-Bacon Act at NRTS-on the contrary, work of this type has consistently been performed under contracts which were not subject to the act and does not represent a departure from past AEC DavisBacon determinations made in connection with work of a similar nature.

The Wage Appeals Board rendered its opinion [67-6] on April 8, 1967. It upheld the determination by the Solicitor of Labor, stating in pertinent part:

The petitioners state that the erection of the reactor system involves a configuration which is conceptual in nature; it will involve supervision and participation in the erection by professional personnel. The reactor is then described as "an experiment involving peaceful uses of nuclear energy; i.e., safety of private