B-154372, JUN. 18, 1964

B-154372, JUN. 18, 1964

TO REZENDES BAPTISTA:

IN THE MATTER OF REZENDES BAPTISTA, DOING BUSINESS AS R. BAPTISTA, INC., NEW BEDFORD, MASSACHUSETTS.

SECTION 1 OF THE DAVIS BACON ACT OF AUGUST 30, 1935, 49 STAT. 1011, 40 U.S.C. 276A, PROVIDES, IN PART, THAT:

"THE ADVERTISED SPECIFICATIONS FOR EVERY CONTRACT IN EXCESS OF $2,000, TO WHICH THE UNITED STATES * * * IS A PARTY, FOR CONSTRUCTION, ALTERATION, AND/OR REPAIR, INCLUDING PAINTING AND DECORATING, OR PUBLIC BUILDINGS OR PUBLIC WORKS OF THE UNITED STATES * * * AND WHICH REQUIRES OR INVOLVES THE EMPLOYMENT OF MECHANICS AND/OR LABORERS SHALL CONTAIN A PROVISION STATING THE MINIMUM WAGES TO BE PAID VARIOUS CLASSES OF LABORERS AND MECHANICS * * * AND 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 * * *.'

SECTION 3 (A) OF THE ACT PROVIDES THAT:

"* * * THE COMPTROLLER GENERAL OF THE UNITED STATES IS FURTHER AUTHORIZED AND IS DIRECTED TO DISTRIBUTE A LIST TO ALL DEPARTMENTS OF THE GOVERNMENT GIVING THE NAMES OF PERSONS OR FIRMS WHOM HE HAS FOUND TO HAVE DISREGARDED THEIR OBLIGATIONS TO EMPLOYEES AND SUBCONTRACTORS. NO CONTRACT SHALL BE AWARDED TO THE PERSONS OR FIRMS APPEARING ON THIS LIST OR TO ANY FIRM, CORPORATION, PARTNERSHIP, OR ASSOCIATION IN WHICH SUCH PERSONS OR FIRMS HAVE AN INTEREST UNTIL THREE YEARS HAVE ELAPSED FROM THE DATE OF PUBLICATION OF THE LIST CONTAINING THE NAMES OF SUCH PERSONS OF FIRMS.'

CONTRACT NO. GS-01B-4043, IN EXCESS OF $2,000, FOR ARCHITECTURAL RESTORATION OF AND REPAIRS TO THE UNITED STATES CUSTOM HOUSE, NEW BEDFORD, MASSACHUSETTS, WAS ENTERED INTO APRIL 3, 1962, BY THE UNITED STATES (GENERAL SERVICES ADMINISTRATION) WITH THE MIRACLE CONSTRUCTION COMPANY, INC., BELMONT, MASSACHUSETTS. PORTIONS OF THE WORK WERE SUBCONTRACTED TO REZENDES BAPTISTA, DOING BUSINESS AS R. BAPTISTA, INC. THE CONTRACT CONTAINED THE STIPULATIONS AND REPRESENTATIONS REQUIRED BY SECTION 1 OF THE ACT.

AN INVESTIGATION CONDUCTED BY THE COMPLIANCE DIVISION OF THE GENERAL SERVICES ADMINISTRATION DISCLOSED THAT THE SUBCONTRACTOR HAVING FULL KNOWLEDGE OF HIS STATUTORY AND CONTRACTUAL RESPONSIBILITIES DID NEVERTHELESS DISREGARD THESE OBLIGATIONS AS EVIDENCED BY THE DELIBERATE PAYMENT OF SUB-MINIMUM WAGE RATES TO MECHANICS EMPLOYED ON THE SUBJECT PROJECT. AS A RESULT OF THIS INVESTIGATION, EIGHT EMPLOYEES WERE FOUND TO HAVE BEEN UNDERPAID A TOTAL OF $1,103.57 IN VIOLATION OF THE DAVIS-BACON ACT UNDER THE TERMS OF THE CONTRACT. THE INVESTIGATION REPORT ALSO REVEALED THAT CERTIFIED PAYROLLS SUBMITTED TO THE CONTRACTING AGENCY CONTAINED INCORRECT INFORMATION DESIGNED TO SIMULATE COMPLIANCE WITH THE APPLICABLE LABOR STANDARDS REQUIREMENTS. IN PARTICULAR, THE CERTIFIED PAYROLLS REFLECTED PAYMENT OF THE CONTRACT MINIMUM WAGE RATES, WHEREAS THE EVIDENCE OF RECORD ESTABLISHES THE PAYMENT OF SUBSTANTIALLY LOWER RATES. BY REGISTERED LETTER DATED JANUARY 17, 1964, THE SOLICITOR OF LABOR NOTIFIED THE SUBCONTRACTOR IN DETAIL OF THE NATURE AND EXTENT OF THE LABOR STANDARDS VIOLATIONS CHARGED AGAINST HIM AND HE DOES NOT APPEAR TO HAVE PRESENTED ANY EVIDENCE IN REBUTTAL.

IT IS CLEAR, PARTICULARLY IN THE LIGHT OF THE FALSE PAYROLLS, THAT GOOD FAITH WAS NOT SHOWN IN COMPLYING WITH THE ACT AND CONTRACTUAL PROVISIONS. ONLY THROUGH INVESTIGATION AND DETECTION OF THE MISLEADING INFORMATION FURNISHED IN PAYROLL REPORTS WAS IT POSSIBLE FOR THE GOVERNMENT TO ADOPT MEASURES PROTECTING THE EMPLOYEES INVOLVED AND ENSURING COMPLIANCE. THE GENERAL SERVICES ADMINISTRATION AND DEPARTMENT OF LABOR HAVE RECOMMENDED IMPOSITION OF DEBARMENT.

WE THEREFORE FIND THAT REZENDES BAPTISTA, DOING BUSINESS AS R. BAPTISTA, INC., HAD DISREGARDED ,OBLIGATIONS TO EMPLOYEE" WITHIN THE MEANING OF THE DAVIS-BACON ACT. ACCORDINGLY, THESE NAMES WILL BE INCLUDED ON A LIST FOR DISTRIBUTION TO ALL AGENCIES OF THE GOVERNMENT, PURSUANT TO THE STATUTORY REQUIREMENTS, AND NO CONTRACT SHALL BE AWARDED TO THEM OR ANY FIRM, CORPORATION, PARTNERSHIP, OR ASSOCIATION IN WHICH THEY HAVE AN INTEREST UNTIL THREE YEARS HAVE ELAPSED FROM THE DATE OF PUBLICATION OF SUCH LIST.