B-193145 L/M, SEP 25, 1981

B-193145 L/M, SEP 25, 1981

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, AND THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT, 40 U.S.C. 327 ET SEQ., BY HYDE PARK EXCAVATORS CO., HYDE PARK, NEW YORK, WHICH PERFORMED WORK UNDER DEPARTMENT OF THE ARMY CONTRACT NOS. DACA51-76-C-0163, DACA51-77-C-0041, AND DACA51-77-C 0089 AT PICATINNY ARSENAL, DOVER, NEW JERSEY.

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 $5,137.99 ON DEPOSIT HERE TO THE SIX 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 MYRON COLBREUNER ON EXTENSION 53218.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD-CLAIMS GROUP

RETURNED. HYDE PARK EXCAVATORS CO. (HYDE PARK) UNDERPAID SIX EMPLOYEES WHILE PERFORMING AS A SUBCONTRACTOR FOR JUNO CONSTRUCTION CORPORATION ON CONTRACTS DACA51-76-C-0163 AND DACA51-77-C-0041 AND FOR PLACEWAY CONSTRUCTION CORP. ON CONTRACT DACA51-77-C-0089.

ALLEGEDLY, HYDE PARK FORGED ENDORSEMENTS ON THREE EMPLOYEES' CONTRACT WORK HOURS AND SAFETY STANDARDS ACT (CWHSSA) RESTITUTION CHECKS AND FORCED THREE OTHER EMPLOYEES TO KICK BACK THE PROCEEDS OF THEIR CWHSSA RESTITUTION CHECKS. DEBARMENT FOR VIOLATIONS OF CWHSSA AND THE COPELAND ACT (KICKBACKS) IS A MATTER FOR THE DEPARTMENT OF LABOR (DOL). SEE 40 U.S.C. SEC. 330(D) (1976), 40 U.S.C. SEC. 276C (1976) AND 29 C.F.R. SECS. 5.1 AND 5.6. DOL DECLINED TO DEBAR.

THE DAVIS-BACON VIOLATIONS CONCERN FAILURE TO PAY WITHHOLDING TAXES, INSURANCE BENEFITS AND THE REQUIRED HOURLY WAGE RATE. WHILE THE EVIDENCE OF RECORD CONCERNING THE DAVIS-BACON VIOLATIONS MIGHT BE SUFFICIENT TO SUPPORT DEBARMENT OF HYDE PARK, WE CONCUR WITH THE DEPARTMENT OF LABOR THAT DEBARMENT SANCTIONS SHOULD NOT BE IMPOSED. IT HAS BEEN MORE THAN 4 YEARS SINCE THE VIOLATIONS OCCURRED. IF WE WERE TO INITIATE DEBARMENT PROCEEDINGS NOW, DUE PROCESS WOULD HAVE TO BE ACCORDED HYDE PARK. DUE PROCESS IN THIS CASE WOULD REQUIRE, AT THE MINIMUM, NOTICE AND SOME TYPE OF HEARING WHICH WOULD ENTAIL FURTHER DELAYS. B-203309-O.M., AUGUST 28, 1981.

AS TO THE PRIME CONTRACTORS, THERE IS NO EVIDENCE THAT THEY PARTICIPATED IN OR CONTRIBUTED TO THE DISREGARD OF OBLIGATIONS TO THE EMPLOYEES WITHIN THE INTENT OF THE DAVIS-BACON ACT SO AS TO PROVIDE A BASIS FOR DEBARMENT OF THEM. B-203309-O.M., SUPRA.

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