B-210531.OM., APR 14, 1983

B-210531.OM., APR 14, 1983

PRECIS-UNAVAILABLE

THE COMPTROLLER GENERAL:

WE ARE FORWARDING THE FILE PERTAINING TO THE APPARENT VIOLATIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, BY SCHMELZ BROTHERS, INC., GLENDALE, NEW YORK, WHICH PERFORMED WORK UNDER NATIONAL PARK SERVICE CONTRACT NO. CX- 1600-7-9010 AT STATUE OF LIBERTY NATIONAL MONUMENT, ELLIS ISLAND, NEW YORK.

DETAILS OF THE VIOLATIONS AND ADMINISTRATIVE RECOMMENDATIONS CONCERNING DEBARMENT ARE CONTAINED IN THE ATTACHED INVESTIGATIVE REPORT AND DEPARTMENT OF LABOR TRANSMITTAL LETTER.

WE PROPOSE, WITH YOUR APPROVAL, TO DISBURSE THE $4,084.54 ON DEPOSIT HERE TO THE ONE AGGRIEVED WORKER IN ACCORDANCE WITH ESTABLISHED PROCEDURES. OUR PROPOSAL AND THE MATTER OF WHETHER THE CONTRACTOR'S NAME SHOULD BE PLACED ON THE DEBARRED BIDDERS LIST FOR VIOLATIONS UNDER THE DAVIS-BACON ACT ARE FORWARDED FOR YOUR CONSIDERATION AND INSTRUCTIONS.

FOR FURTHER INFORMATION, PLEASE CONTACT MYRON COLBREUNER ON EXTENSION 53218.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD-CLAIMS GROUP

RETURNED. THE VIOLATIONS OF THE DAVIS-BACON ACT BY SCHMELZ BROTHERS, INC., GLENDALE, NEW YORK, A SUBCONTRACTOR FOR LINWOOD ROOFING AND CONTRACTING, ON NATIONAL PARK SERVICE CONTRACT NO. CX-1600-7-9010 PERFORMED AT THE STATUE OF LIBERTY NATIONAL MONUMENT, ELLIS ISLAND, NEW YORK, WERE CLASSIFICATION VIOLATIONS. SCHMELZ BROTHERS CLASSIFIED AND PAID A WORKER AS A PLUMBER'S HELPER WHEN THE EVIDENCE INDICATES THAT THE CLASSIFICATION AND PAYMENT SHOULD HAVE BEEN THAT OF A PLUMBER. HOWEVER, THERE DOES NOT APPEAR TO HAVE BEEN ANY WILLFUL DECEPTION ON THE PART OF EITHER THE CONTRACTOR OR SUBCONTRACTOR. THE PAYROLLS WERE NOT FALSIFIED. THE AMOUNT PAID THE WORKER WAS CORRECTLY INDICATED ON THE PAYROLLS, AS WELL AS THE ERRONEOUS CLASSIFICATION. THE RECORD INDICATES THAT THE VIOLATIONS WERE THE RESULT OF A BONA FIDE DISAGREEMENT OR DISPUTE CONCERNING CLASSIFICATION OF THE EMPLOYEE IN QUESTION. SEE B-207644-O.M., OCTOBER 20, 1982. THEREFORE, WE ARE OF THE VIEW THAT NEITHER THE SUBCONTRACTOR NOR THE PRIME CONTRACTOR SHOULD BE DEBARRED SINCE NOT ONLY WERE THE VIOLATIONS NOT OF SUCH A WILLFUL NATURE AS TO WARRANT DEBARMENT, BUT IT HAS BEEN APPROXIMATELY 5 YEARS SINCE THE VIOLATIONS OCCURRED. WE WERE TO INITIATE DEBARMENT PROCEEDINGS AT THIS TIME, DUE PROCESS WOULD HAVE TO BE ACCORDED THE SUBCONTRACTOR. DUE PROCESS IN THIS CASE WOULD ENTAIL, AT THE MINIMUM, NOTICE AND SOME SORT OF HEARING WHICH WOULD FURTHER DELAY REIMBURSEMENT OF THE UNDERPAID WORKER. SEE B-195948-O.M., NOVEMBER 5, 1979. NEITHER THE DEPARTMENT OF LABOR NOR THE CONTRACTING AGENCY RECOMMENDS DEBARMENT.

ACCORDINGLY, THE FUNDS ON DEPOSIT WITH YOUR OFFICE MAY BE DISBURSED TO THE AGGRIEVED WORKER IN ACCORDANCE WITH ESTABLISHED PROCEDURES.