have been using his union position and the agreement with the employer to extort money from employees for his own private gain in no way connected with the union or its "legitimate activities." It affirmatively appears in the indictment that his position was such that he had control over the employees' jobs. We know of no rule of law which requires an indictment to negative every concevable exception or exemption to the statute under which it is returned.

[4] We think the instant case is clearly distinguishable from Carbone, and that the indictment as written charges an offense under the Kickback Act. The judgment is

Reversed.

3) The Davis-Bacon Act

UNITED STATES v. BINGHAMTON CONSTRUCTION CO., INC. 347 U.S. 171 (1954)

Mr. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This case is before us on writ of certiorari to the Court of Claims. The question presented is whether the schedule of minimum wage rates included in a Government construction contract, as required by the Davis-Bacon Act, is a representation or warranty as to the prevailing wage rates in the contract area. We hold that it is not.

The Davis-Bacon Act requires that the wages of workmen on a Government construction project shall be "not less" than the "minimum wages" specified in a schedule furnished by the Secretary of Labor. The schedule "shall be based upon the wages that will be determined by the Secretary of Labor to be prevailing" for corresponding work on similar projects in the area. The Act also provides for penalties, including termination of the contract, if it is found that the contractor is paying less than the schedule rate.

The respondent, a construction company, was the successful bidder for a Government flood control project on the Chemung River at Elmira, New York. On January 31, 1941, at the request of the Corps of Engineers, the Secretary of Labor submitted a schedule of minimum wages for the project. This schedule set the minimum hourly wage rate at $1.00 for carpenters and $.50 for laborers. On March 29, 1941, the Corps of Engineers issued an invitation for bids. Pursuant to the Davis-Bacon Act, supra, the Secretary's wage schedule was included in the contract specifications furnished to respondent, prior to the computation of its bid. On May 14, 1941, respondent's bid of $232,669.30 was accepted and a written contract was executed, incorporating the specifications and subject only to formal approval by the Government. The contract provided that respondent was to

pay wages "not less than those stated in the specifications ."; for breach of this provision, the Government was authorized to terminate the contract. On June 3, 1941, the contract was formally approved; and on June 5, 1941, respondent received notice to proceed with the work.

On October 22, 1940, the local carpenters' union had notified the contracting officer that the hourly wage scale for carpenters would be increased from $1.00 to $1.125 as of January 1, 1941. On March 4, 1941, some three weeks prior to the invitation for bids on the project involved here, the Secretary of Labor had furnished another Government agency, the Federal Works Agency, a schedule of minimum wages for inclusion in the specifications for a federal housing project in Elmira. This schedule set the minimum hourly wage rate at $1.125 for carpenters and $.55 for laborers. On April 1, 1941, the union hourly rate for laborers was increased from $.55 to $.625.

In the performance of the contract, respondent paid the union rates then in effect-$1.125 for carpenters and $.625 for laborers. On June 16, 1941, respondent protested to the contracting officer that it was unable to obtain workmen at the rates specified in the contract schedule and demanded an adjustment of compensation, on the theory that the schedule was an affirmative representation as to the prevailing wage rates in the area and that respondent was entitled to rely on this representation in the computation of its bid. The contracting officer denied relief and the Chief of Engineers dismissed respondent's appeal.

Respondent thereupon brought this action in the Court of Claims, seeking damages for the alleged misrepresentation as well as other relief. The court specifically found that an investigation by respondent would have revealed that the prevailing rates were higher than the rates specified in the schedule. Nevertheless, it allowed respondent a recovery of $7,363.22, consisting of the difference between the rates specified in the contract schedule ($1.00 for carpenters and $.50 for laborers) and the rates specified in the Secretary of Labor's determination for the Federal Works Agency ($1.125 for carpenters and $.55 for laborers). The court held that the contract schedule misrepresented-although inadvertently-the prevailing wage rate in the Elmira area, since, prior to the invitation to bid, the Secretary of Labor had made a higher determination and the contracting officer could have ascertained that fact. Respondent, the court held, was entitled to rely on the schedule "as the Secretary's latest determination-as a representation of the wages it would have to pay when the work was to be done." We granted review because of the obvious importance of the decision in the administration of the Davis-Bacon Act.

622161-6234

525

The Act itself confers no litigable rights on a bidder for a Government construction contract. The language of the Act and its legislative history plainly show that it was not enacted to benefit contractors, but rather to protect their employees from substandard earnings by fixing a floor under wages on Government projects. Congress sought to accomplish this result by directing the Secretary of Labor to determine, on the basis of prevailing rates in the locality, the appropriate minimum wages for each project. The correctness of the Secretary's determination is not open to attack on judicial review.

***

The Court of Claims nevertheless awarded respondent damages on the ground that the Government, through the Corps of Engineers, had falsely represented the prevailing rates in the Elmira area. The short answer to this is that the Government made no such representation. Neither the contract nor the specifications refers to "prevailing" rates. The contract speaks only of "wage rates not less than those stated in the specifications." The specifications in turn speak only of "minimum wage rates applicable in the locality." The only reference to "prevailing" rates appears in the statute itself, which provides that the mini***the wages mum wage rates are to be "based upon determined by the Secretary of Labor to be prevailing." But this provision in the Act cannot convert the contractor's obligation to pay not less than the minimum into a Government representation that the conractor will not have to pay more. On its face, the Act is a minimum wage law designed for the benefit of construction workers. The Act does not authorize or contemplate any assurance to a successful bidder that the specified minima will in fact be the prevailing rates. Indeed, its requirement that the contractor pay "not less" than the specified minima presupposes the possibility that the contractor may have to pay higher rates. Under these circumstances, even assuming a representation by the Government as to the prevailing rate, respondent's reliance on the representation in computing its bid cannot be said to have been justified.

The Government further contends that the Secretary of Labor was justified in fixing different minimum rates for the housing and flood control projects according to the degree of skill required by each project, and that respondent is estopped to claim misrepresentation because of its failure to make an investigation of labor costs before submitting its bid. Because of our disposition of the case, we find it unnecessary to reach these issues. The portion of the judgment on which the Government sought review is

Reversed.

4) Limitations on Remedies

UNEXCELLED CHEMICAL CORP. v. UNITED STATES

345 U.S. 59 (1953)

Mr. JUSTICE DOUGLAS delivered the opinion of the Court. This is an action brought by the United States to recover liquidated damages under the Walsh-Healey Act. 49 Stat. 2036, as amended, 41 U.S.C. § 35 et seq. That Act provides that a contractor furnishing the Government materials, supplies, etc., in an amount exceeding $10,000 must meet specified labor standards. Thus, child labor and convict labor are prohibited, § 1(d), under the sanction of $10 a day for each day any minor or convict is employed plus any underpayment of wages, payable as liquidated damages. § 2. These sums of money owing the United States may be withheld from amounts due on the contracts or may be recovered in suits brought in the name of the United States by the Attorney General. § 2. The Secretary of Labor administers the Act (see § 4; Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 507), making investigations and findings (§ 4) and issuing complaints and holding hearings. § 5.

On April 17, 1947, the Secretary of Labor issued a complaint charging petitioner with having knowingly employed child labor during the years 1942-1945 in violation of the Act. On February 25, 1949, a Hearing Examiner made a decision in which he found that petitioner had knowingly employed child labor in violation of the Act and was indebted to the United States in the sum of $15,600 as liquidated damages. Under the Rules of Practice of the Department of Labor that decision became final at the end of the twenty-day period within which petitioner had an opportunity to petition the Chief Hearing Examiner for review.

Nearly a year later-January 27, 1950-this action was brought. The answer tendered as a defense the two-year statute of limitations contained in § 6 of the Portal-to-Portal Act of 1947, 61 Stat. 84, 87, 29 U.S.C. (Supp. V) § 255. Both parties moved for summary judgment. The District Court granted petitioner's motion, holding that the cause of action arose when petitioner violated the statute and that the two-year statute of limitations began to run from the date. 99 F.Supp. 155. The Court of Appeals reversed, 196 F.2d 264, holding that actions brought by the United States to enforce the child labor provisions of the Walsh-Healey Act are not barred by the two-year limitation period of § 6 of the Portal-to-Portal Act. The case is here on certiorari because of a conflict between that decision and Lance, Inc. v. United States, 190 F.2d 204, and United States v. Lovknit Mfg. Co., 189 F.2d 454, from the Courts of Appeals of the Fourth and Fifth Circuits respectively.

Section 6 of the Portal-to-Portal Act provides a two-year statute of limitations for any action commenced on or after the date of the Act "to enforce any cause of action for unpaid minimum wages, unpaid overtime compensations, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act." Section 6 also provides that "every such action shall be forever barred unless commenced within two years after the cause of action accrued."

Respondent argues that even if this cause of action is subject to the two-year statute of limitations contained in § 6 of the Portal-toPortal Act, the present suit was timely. The contention is that the cause of action accrues, and the two-year period begins to run, only after it is administratively determined by the Department of Labor that the contractor is liable to the United States for liquidated damages. If that contention is sound, the judgment below must stand, as this suit was begun less than two years after the conclusion of the administrative proceedings.

We take the opposing view. We conclude that "the cause of action accrued," within the meaning of § 6 of the Portal-to-Portal Act, when the minors were employed. That was the violation of the WalshHealey Act, giving rise to the liability for liquidated damages.

*

A cause of action is created when there is a breach of duty owed the plaintiff. It is that breach of duty, not its discovery, that normally is controlling. Section 2 of the Walsh-Healey Act provides that the Attorney General may bring suit to recover moneys owed the United States. The fact that due difference to the administrative process should make a court hold its hand until the administrative proceedings before the Secretary of Labor have been completed (Far East Conference v. United States, 342 U.S. 570; Thompson v. Texas Mexican R. Co., 328 U.S. 134; General American Tank Corp. v. ElDorado Terminal Co., 308 U.S. 422; United States v. Morgan, 307 U.S. 183) is a matter of judicial administration and of no relevancy here. The statutory liability accrued when the minors were employed. It was from that date that the period of limitations began to run.

This construction, it is said, will prejudice the power of the United States to safeguard the public interest. But if there is prejudice it is the result of the Portal-to-Portal Act which Congress, having made, can refashion.

There is the final argument that the action was, in any event, commenced when the administrative proceedings were initiated. Section 7 of the Portal-to-Portal Act provides that "an action is commenced for the purposes of section 6 *** on the date when the complaint is