Sheet Metal Workers' International Association, Case No. VFA-0268, March 5, 1997

Case No. VFA-0268, 26 DOE ¶ 80,166

March 5, 1997

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner: Sheet Metal Workers' International Association

Date of Filing: February 11, 1997

Case Number: VFA-0268

On February 11, 1997, Sheet Metal Workers' International Association (the Appellant) filed an Appeal from a determination issued to it on January 3, 1997, by Amy Rothrock, Authorizing Official, Oak Ridge Operations Office (DOE/OR). That determination denied a request for information which the Appellant filed on December 12, 1996, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, implemented by the DOE in 10 C.F.R. Part 1004. If the present Appeal were granted, DOE would be ordered to release in its entirety information that was sought in the December 12, 1996 Request.

In its December 12, 1996 FOIA Request, the Appellant sought, inter alia, copies of the certified payrolls and the apprentice registration forms for the Clean Room installed by a sub-contractor, Liberty Industries, for Lockheed Martin Energy Research Corporation (LMERC), the prime contractor of DOE's X-10 site at Oak Ridge. In the January 3, 1997 determination, DOE/OR found that the requested records are not in the possession of DOE. It also stated that its search did not extend to the files of LMERC. DOE/OR therefore found that it does not possess any responsive records subject to the provisions of the FOIA. The Appellant challenges this determination.

According to the Appellant, the contract to build the Clean Room was a project subject to the Davis-Bacon Act, 40 U.S.C. § 276a. The Appellant asserts that under regulations implementing that Act, DOE is required to possess the requested payroll and apprentice registration forms in order to ensure compliance with the Act's pay provisions. See 29 C.F.R. § 5.5(a)(3)(ii)(A).

After speaking with DOE/OR, we learned that DOE/OR considers the Clean Room contract to be a service contract, and therefore not a construction contract covered by the Davis-Bacon Act.(1)

Thus, under this interpretation, DOE/OR is not required to maintain and, in fact, does not possess any responsive records. See Electronic Mail Message between Amy Rothrock and Dawn Goldstein (February 21, 1997); Record of Telephone Conversation between Amy Rothrock and Dawn Goldstein (February 21, 1997). Therefore, DOE/OR's determination that the agency possessed no responsive records subject to the FOIA at the time of the request was correct.

Even though there are no responsive documents in the possession of DOE, a DOE regulation, 10 C.F.R. § 1004.3, requires additional analysis. This regulation states that responsive documents must be disclosed if the contract between the DOE and a contractor provides that those documents are the property of the agency. Under LMERC's current contract with DOE, records and files pertaining to wages, salaries, and benefits and wage, salary and benefit administration are the property of LMERC. See Contract No. DE-AC05-96OR22464 between DOE and LMERC, Provision H.22(b)(5) (DEAR 970.5204-AL 92-84 (November 1992)). The payroll certifications and the apprentice registration forms clearly fall within that provision.(2) Further, since the requested records concern a subcontractor, Liberty Industries, these records could also be considered procurement records, which, under the LMERC contract, also belong solely to the contractor. Thus, Section 1004.3 does not require the release of these records and the present Appeal should be denied.

It Is Therefore Ordered That:

(1) The Appeal filed by Sheet Metal Workers' International Association on February 11, 1997, Case Number VFA-0268, is hereby denied.

(2) This is a final order of the Department of Energy of which any aggrieved party may seek judicial review pursuant to the provisions of 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought in the district in which the requester resides or has a principal place of business, or in which the agency records are situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: March 5, 1997

(1)DOE/OR interpreted the contract this way because installing the Clean Room essentially consisted of putting up some pre-fabricated panels to create a room within an existing room. DOE/OR considered this installation to be service and not construction. See Electronic Mail Message between Amy Rothrock and Dawn Goldstein, Staff Attorney, OHA (February 21, 1997); Record of Telephone Conversation between Amy Rothrock and Dawn Goldstein (February 21, 1997).

(2)Apprentice registration forms are necessary to determine which category of pay a construction worker is entitled to under the Davis-Bacon Act. See Record of Telephone Conversation between Patrick J. Riley, Counsel, Appellant, and Dawn Goldstein (February 21, 1997). Thus, these records would pertain to wage administration and accordingly belong to the contractor.