B-207642.OM., OCT 20, 1982

B-207642.OM., OCT 20, 1982

PRECIS-UNAVAILABLE

THE COMPTROLLER GENERAL:

WE ARE FORWARDING THE FILE PERTAINING TO THE APPARENT VIOLATIONS OF TH E DAVIS-BACON ACT, 40 U.S.C. 276A, BY CHARLES J. OGG COMPANY WHICH PERFORMED WORK UNDER THE DEPARTMENT OF THE ARMY CONTRACT NO. DAKF23-78 C-0721 AT FORT CAMPBELL, KENTUCKY.

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

WE NOTE THAT THE DEPARTMENT OF LABOR HAS COMPUTED BACK WAGES IN THE AMOUNT OF $1,054.08. HOWEVER, THE FIRM REFUSED TO PAY THE BACK WAGES AND THE DEPARTMENT OF THE ARMY WITHHELD THE FUNDS REMAINING ON THE CONTRACT IN THE AMOUNT OF $800, WHICH IS NOW ON DEPOSIT IN THE GENERAL ACCOUNTING OFFICE.

WE PROPOSE, WITH YOUR APPROVAL, TO DISBURSE THE $800 ON DEPOSIT HERE TO THE AGGRIEVED WORKERS 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 MS. LILLIE M. JORDAN ON EXTENSION 53218.

INDORSEMENT

ASSOCIATE DIRECTOR-AFMD, CLAIMS GROUP

RETURNED. CONTRACT NO.DAKF23-78-C-0721 WAS FOR THE REPLACEMENT OF SCREEN DOORS ON 673 CAPEHART HOUSING UNITS AT FORT CAMPBELL, KENTUCKY. A LABOR STANDARDS INVESTIGATION REVEALED THAT FOUR EMPLOYEES, CLASSIFIED AS LABORERS, PERFORMED CARPENTRY WORK FROM 70 PERCENT (THREE EMPLOYEES) TO 100 PERCENT (ONE EMPLOYEE) OF THE TIME. THE CONTRACTOR DISPUTED THE DETERMINATION THAT THE EMPLOYEES SHOULD HAVE BEEN PAID CARPENTER'S WAGE RATES FOR THAT TIME. THE CONTRACTING OFFICER ISSUED A DECISION UNDER THE CONTRACT DISPUTES CLAUSE FINDING THAT THE FOUR EMPLOYEES WERE UNDERPAID BY THE CONTRACTOR A TOTAL OF $1,054.08. THE CONTRACTOR DID NOT APPEAL THE DECISION. THE DEPARTMENT OF LABOR IN PROCESSING THE UNDERPAYMENT TO OUR OFFICE DID NOT DISAGREE WITH THE CONTRACTING OFFICER'S DECISION. UNDER THE TERMS OF STANDARD CONTRACT FORM 19-A, THE DETERMINATION OF THE SECRETARY OF LABOR AS TO THE PROPER CLASSIFICATION IS FINAL. GIVEN THE UNAPPEALED DECISION OF THE CONTRACTING OFFICER AND THE IMPLICIT AGREEMENT OF THE DEPARTMENT OF LABOR THAT THE CARPENTER CLASSIFICATION APPLIES, THE $800 BALANCE DUE UNDER THE CONTRACT WITHHELD TO ADJUST THE UNDERPAYMENTS SHOULD BE DISBURSED TO THE AGGRIEVED EMPLOYEES ON A PRO RATA BASIS PURSUANT TO ESTABLISHED PROCEDURES.

WE CONCUR WITH THE VIEWS OF THE DEPARTMENTS OF ARMY AND LABOR THAT IMPOSITION OF DEBARMENT SANCTIONS IS NOT WARRANTED SINCE THERE WAS A BONA FIDE DISPUTE CONCERNING THE CLASSIFICATION OF THE EMPLOYEES AND THE UNDERPAYMENTS WERE NOT OF SUCH A WILLFUL NATURE AS TO WARRANT DEBARMENT. SEE B-198964-O.M., MARCH 15, 1982.