B-178128.OM., NOV 18, 1982
Highlights
IS WHETHER MR. SHORTT WAS A PARTNER IN THE FIRM OF NORTHERN STATE CONSTRUCTION COMPANY (NORTHERN STATE). A LABOR STANDARD INVESTIGATION BY THE AGENCY INDICATED THAT SHORTT AND NINE OTHER EMPLOYEES WERE UNDERPAID. HAVE BEEN REIMBURSED. SHORTT WAS A PARTNER. THE ONLY SUBSTANTIVE EVIDENCE PRODUCED BY NORTHERN STATE WAS A LETTER DATED OCTOBER 26. WAS THE OWNER OF NORTHERN STATE. SHORTT WAS A PARTNER. NO WRITTEN PARTNERSHIP AGREEMENT WAS PRODUCED TO SUPPORT THE ALLEGED PARTNERSHIP ARRANGEMENT OR. SHORTT INDICATING THAT HE WAS A PARTNER. THERE IS NO EVIDENCE THAT MR. IT IS OUR VIEW THAT MR. SHORTT WAS AN EMPLOYEE OF NORTHERN STATE. IN VIEW OF THE FACT THAT 14 YEARS HAVE ELAPSED SINCE THE VIOLATIONS OCCURRED.
B-178128.OM., NOV 18, 1982
SUBJECT: WAGE CLAIM BY FRANK SHORTT UNDER DAVIS-BACON ACT, 40 U.S.C. SEC. 276A (1976), AND CONTRACT WORK HOURS AND SAFETY STANDARDS ACT, 40 U.S.C. SEC. 327, ET SEQ (1976) - B-178128-O.M.
ACTING ASSOCIATE DIRECTOR, AFMD-CLAIMS GROUP - ORVILLE COY:
THE ONLY UNRESOLVED ISSUE IN THE PRESENT CASE, FILE PA-Z-2415807-DCJ 2 (ATTACHED), IS WHETHER MR. SHORTT WAS A PARTNER IN THE FIRM OF NORTHERN STATE CONSTRUCTION COMPANY (NORTHERN STATE), THE SUBCONTRACTOR, OR AN EMPLOYEE AT THE TIME THE UNDERPAYMENTS OCCURRED. A LABOR STANDARD INVESTIGATION BY THE AGENCY INDICATED THAT SHORTT AND NINE OTHER EMPLOYEES WERE UNDERPAID. ALL EMPLOYEES, EXCEPT SHORTT, HAVE BEEN REIMBURSED. ALTHOUGH GIVEN AMPLE OPPORTUNITY, NORTHERN STATE FAILED TO PRODUCE SUFFICIENT EVIDENCE TO CONVINCE THIS OFFICE THAT MR. SHORTT WAS A PARTNER. THE ONLY SUBSTANTIVE EVIDENCE PRODUCED BY NORTHERN STATE WAS A LETTER DATED OCTOBER 26, 1969, FROM MR. C.W. MITCHELL, WHO, ACCORDING TO THE RECORD, WAS THE OWNER OF NORTHERN STATE, TO AN ATTORNEY IN ANCHORAGE, ALASKA, STATING THAT MR. SHORTT WAS A PARTNER. ON THE OTHER HAND, NO WRITTEN PARTNERSHIP AGREEMENT WAS PRODUCED TO SUPPORT THE ALLEGED PARTNERSHIP ARRANGEMENT OR, FOR THAT MATTER, ANY WRITTEN DOCUMENT OR PAPER SIGNED BY MR. SHORTT INDICATING THAT HE WAS A PARTNER. ALSO, ANOTHER ALLEGED PARTNER REFERRED TO MR. MITCHELL AS THE "OWNER OF THIS COMPANY" IN A LETTER TO THE CORPS OF ENGINEERS DATED JANUARY 24, 1969. IN THIS CONNECTION, MR. MITCHELL SIGNED AN ACKNOWLEDGMENT ON DEPARTMENT OF DEFENSE FORM 1566 AS "OWNER OF NORTHERN STATE CONSTRUCTION COMPANY." MOREOVER, THERE IS NO EVIDENCE THAT MR. SHORTT EVER SHARED IN THE PROFITS OF THE ALLEGED PARTNERSHIP. FINALLY, THE DAVIS-BACON ACT, AT 40 U.S.C. SEC. 26AA) (1976), PROVIDES FOR COVERAGE OF LABORERS AND MECHANICS REGARDLESS OF ANY CONTRACTUAL RELATIONSHIP WHICH MAY BE ALLEGED TO EXIST BETWEEN THE CONTRACTOR OR SUBCONTRACTOR AND SUCH LABORERS AND MECHANICS. ON THE BASIS OF THE PRESENT RECORD, IT IS OUR VIEW THAT MR. SHORTT WAS AN EMPLOYEE OF NORTHERN STATE.
ACCORDINGLY, THE $2,490.44 ON DEPOSIT WITH YOUR OFFICE MAY BE DISBURSED TO MR. SHORTT IN ACCORDANCE WITH ESTABLISHED PROCEDURES.
IN VIEW OF THE FACT THAT 14 YEARS HAVE ELAPSED SINCE THE VIOLATIONS OCCURRED, WE DO NOT BELIEVE THAT THE DEBARMENT OF EITHER THE CONTRACTOR OR SUBCONTRACTOR IS WARRANTED. NEITHER THE DEPARTMENT OF LABOR NOR THE DEPARTMENT OF THE ARMY HAS RECOMMENDED DEBARMENT OF EITHER THE CONTRACTOR OR SUBCONTRACTOR.