B-196703 L/M, MAR 25, 1980

B-196703 L/M, MAR 25, 1980

PRECIS-UNAVAILABLE

RUEL W. BODILY, NORMAN HAGEN; B & H CONTRACTORS:

ENCLOSED IS A COPY OF OUR FINDINGS OF TODAY THAT B & H CONTRACTORS, AND RUEL W. BODILY AND NORMAN HAGEN, INDIVIDUALLY, HAVE DISREGARDED OBLIGATIONS TO EMPLOYEES WITHIN THE MEANING OF THE DAVIS-BACON ACT, 40 U.S.C. SEC. 276A (1976), IN THE PERFORMANCE OF CONTRACT NOS. DABF07-73 D- 0016 AND DABF03-73-C-0309.

PURSUANT TO THE PROVISIONS OF SECTION 3(A) OF THE ACT, THE NAMES OF THE ABOVE INDIVIDUALS AND FIRM SHALL BE INCLUDED ON OUR NEXT PUBLISHED DEBARRED BIDDERS LIST, AND NO GOVERNMENT CONTRACT SHALL BE AWARDED TO ANY OF THEM OR TO ANY FIRM, CORPORATION, PARTNERSHIP, JOINT VENTURE, OR ASSOCIATION IN WHICH THEY OR ANYONE OF THEM MAY HAVE AN INTEREST UNTIL 3 YEARS HAVE ELAPSED FROM THAT DATE.

FINDINGS

IN THE MATTER OF B & H CONTRACTORS AND MESSRS. RUEL W. BODILY AND NORMAN HAGEN, PARTNERS IN SAID FIRM, 321 BARCELONA STREET, VALLEJO, CALIFORNIA 94590.

SECTION 1(A) OF THE DAVIS-BACON ACT OF AUGUST 30, 1935, 49 STAT. 1011, 40 U.S.C. SEC. 276A (1976), 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, OF 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 OR FIRMS."

CONTRACT NO. DABF07-73-D-0016 (HEREAFTER 0016) FOR CONSTRUCTION WORK AT FORT ORD, CALIFORNIA, AND CONTRACT NO. DABF03-73-C-0309 (HEREAFTER 0309) FOR INTERIOR PAINTING OF VARIOUS BUILDINGS AT PRESIDIO OF SAN FRANCISCO, FORTS BAKER, BARRY AND CRONKHITE AND LETTERMAN ARMY MEDICAL CENTER, SAN FRANCISCO AND MARIN COUNTIES, CALIFORNIA, WERE AWARDED TO B & H CONTRACTORS. BOTH CONTRACTS WERE IN EXCESS OF $2,000 AND CONTAINED STIPULATIONS AND REPRESENTATIONS REQUIRED BY SECTION 1 OF THE DAVIS BACON ACT.

INVESTIGATIONS BY THE DEPARTMENTS OF ARMY AND LABOR DISCLOSED THAT THE CONTRACTOR, B & H CONTRACTORS, HAVING FULL KNOWLEDGE OF ITS STATUTORY AND CONTRACTUAL RESPONSIBILITIES, DID NEVERTHELESS DISREGARD THESE OBLIGATIONS AS EVIDENCED BY THE DELIBERATE PAYMENT OF SUBMINIMUM WAGE RATES TO PERSONS EMPLOYED BY IT ON THE SUBJECT PROJECTS. AS A RESULT OF THESE INVESTIGATIONS 25 EMPLOYEES WHO WORKED ON CONTRACT NO. 0309 AND 21 EMPLOYEES WHO WORKED ON CONTRACT NO. 0016 WERE FOUND TO HAVE BEEN UNDERPAID TOTALS OF $53,330.78 AND $57,118.64, RESPECTIVELY, IN VIOLATION OF THE DAVIS-BACON ACT AND THE CONTRACT WORKS HOURS AND SAFETY STANDARDS ACT, 40 U.S.C. SECS. 327, ET SEQ. (1976). THE RECORD ALSO REVEALED THAT THE CERTIFIED PAYROLLS SUBMITTED TO THE CONTRACTING AGENCY CONTAINED INCORRECT INFORMATION DESIGNED TO SIMULATE COMPLIANCE WITH THE APPLICABLE LABOR STANDARDS REQUIREMENTS.

BY REGISTERED LETTER DATED JULY 28, 1976, THE DEPUTY ADMINISTRATOR, WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR, NOTIFIED THE ABOVE-NAMED CONTRACTOR IN DETAIL OF THE NATURE AND EXTENT OF THE LABOR STANDARDS VIOLATIONS CHARGED AGAINST THE FIRM. AT THE CONTRACTOR'S REQUEST, AN INFORMAL PROCEEDING WAS HELD ON FEBRUARY 10, 1977, WITH MR. JOHN SILVER, THE SAN FRANCISCO ASSISTANT REGIONAL ADMINISTRATOR, AS THE PRESIDING OFFICER. MR. SILVER FOUND THAT THE VIOLATIONS WARRANTED DEBARMENT. THE CONTRACTOR FILED AN APPEAL WITH THE ADMINISTRATOR, WAGE AND HOUR DIVISION, WHO SUSTAINED THE FINDINGS OF THE ASSISTANT REGIONAL ADMINISTRATOR AND ADVISED THE CONTRACTOR OF ITS RIGHT TO APPEAL THE DECISION TO THE WAGE APPEALS BOARD. THE CONTRACTOR DID NOT FILE AN APPEAL WITH THE WAGE APPEALS BOARD.

IT IS CLEAR, PARTICULARLY IN LIGHT OF THE FALSIFIED PAYROLLS, THAT GOOD FAITH WAS NOT SHOWN IN COMPLYING WITH THE ACT AND CONTRACTUAL PROVISIONS. THE CONTRACTOR ARGUES THAT GOOD FAITH HAD BEEN SHOWN SINCE IT MADE VOLUNTARY RESTITUTION OF $22,433.21 OF THE $57,118.64 OWED THE WORKERS UNDER CONTRACT NO. 0016 (THE BALANCE OF $34,610.91 WAS WITHHELD FROM AMOUNTS DUE UNDER THE CONTRACT). HOWEVER, ONLY AFTER INVESTIGATION AND DETECTION OF THE MISLEADING INFORMATION FURNISHED ON THE PAYROLL REPORTS WAS IT POSSIBLE TO MAKE RESTITUTION TO THE UNDERPAID EMPLOYEES. THE DEPARTMENT OF LABOR HAS RECOMMENDED IMPOSITION OF DEBARMENT SANCTIONS.

WE THEREFORE FIND THAT B & H CONTRACTORS, AND RUEL W. BODILY AND NORMAN HAGEN, INDIVIDUALLY, HAVE DISREGARDED "OBLIGATIONS TO EMPLOYEES" 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 TO ANY FIRM, CORPORATION, PARTNERSHIP, JOINT VENTURE OR ASSOCIATION, IN WHICH THEY OR ANY OF THEM HAVE AN INTEREST UNTIL 3 YEARS HAVE ELAPSED FROM THE DATE OF PUBLICATION OF SUCH LIST.