B-142016, MAR. 10, 1960

B-142016, MAR. 10, 1960

TO WESTERN FENCE COMPANY:

ATTACHED IS A COPY OF OUR FINDING OF TODAY THAT THE WESTERN FENCE COMPANY, P. B. TAYLOR, OWNER, J. D. TRICE, GENERAL MANAGER, AND MRS. P. B. TAYLOR, BOOKKEEPER, INDIVIDUALLY, HAVE DISREGARDED OBLIGATIONS TO EMPLOYEES WITHIN THE MEANING OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, IN THE PERFORMANCE OF CONTRACT DA-34-066-ENG-5573, FOR CONSTRUCTION OF A PERIMETER FENCE AT THE AMARILLO AIR FORCE BASE, TEXAS.

PURSUANT TO THE PROVISIONS OF SECTION 3 (A) OF THE ACT, THESE NAMES WILL BE INCLUDED ON A LIST FOR PUBLICATION MARCH 15, 1960, AND NO CONTRACT WILL BE AWARDED TO ANY OF THEM, OR TO ANY FIRM, CORPORATION, PARTNERSHIP, OR ASSOCIATION IN WHICH THEY HAVE AN INTEREST, UNTIL THREE YEARS SHALL HAVE ELAPSED FROM SUCH DATE.

FINDING

IN THE MATTER OF THE WESTERN FENCE COMPANY, P. B. TAYLOR, OWNER,J. D. TRICE, GENERAL MANAGER, AND MRS. P. B. TAYLOR, BOOKKEEPER, AMARILLO, TEXAS.

SECTION 1 OF THE DAVIS-BACON ACT OF AUGUST 30, 1935, 49 STAT. 1011, 40 U.S.C. 276A, 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, OR 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 DA-34-066-ENG-5573, IN EXCESS OF 2,000, FOR CONSTRUCTION OF A PERIMETER FENCE AT THE AMARILLO AIR FORCE BASE, TEXAS, WAS ENTERED INTO AUGUST 29, 1958, BY THE UNITED STATES (CORPS OF ENGINEERS), WITH THE WESTERN FENCE COMPANY. THE CONTRACT CONTAINED PROVISIONS AND STIPULATIONS REQUIRED BY SECTION 1 OF THE ACT.

AN INVESTIGATION BY THE CORPS OF ENGINEERS OF COMPLIANCE WITH LABOR STANDARDS, INCLUDING PAYMENT TO EMPLOYEES OF PRESCRIBED MINIMUM WAGES, DISCLOSED THAT FIVE (5) WORKERS HAD BEEN UNDERPAID IN THE TOTAL AMOUNT OF $242.60. NONETHELESS, SWORN PAYROLL REPORTS WERE SUBMITTED SHOWING FULL PAYMENT OF REQUIRED WAGES. ALTHOUGH THE CONTRACTOR WAS AFFORDED AN OPPORTUNITY TO MAKE APPROPRIATE WAGE ADJUSTMENTS, IT DID SO ONLY IN PART, AND IT WAS NECESSARY FOR THE CONTRACTING AGENCY TO SET ASIDE A PORTION OF THE CONTRACT PRICE TO COMPLETE THE ADJUSTMENTS.

IT IS CLEAR, PARTICULARLY IN THE LIGHT OF THE FALSE PAYROLLS, THAT GOOD FAITH WAS NOT SHOWN IN COMPLYING WITH THE ACT AND CONTRACTUAL PROVISIONS. ONLY THROUGH INVESTIGATION AND DETECTION OF THE MISLEADING INFORMATION SUBMITTED IN AFFIDAVIT FORM WAS IT POSSIBLE FOR THE GOVERNMENT TO ADOPT MEASURES PROTECTING THE EMPLOYEES INVOLVED AND INSURING COMPLIANCE. THE DEPARTMENT OF LABOR AND THE CORPS OF ENGINEERS HAVE RECOMMENDED IMPOSITION OF DEBARMENT.

WE THEREFORE FIND THAT THE WESTERN FENCE COMPANY, P. B. TAYLOR, OWNER, J. D. TRICE, GENERAL MANAGER, AND MRS. P. B. TAYLOR, BOOKKEEPER, INDIVIDUALLY, HAVE DISREGARDED "OBLIGATIONS TO EMPLOYEES" WITHIN THE MEANING OF THE DAVIS-BACON ACT. ACCORDINGLY, THEIR NAMES WILL BE INCLUDED ON A LIST OF DEBARMENTS FOR DISTRIBUTION MARCH 15, 1960, TO ALL AGENCIES OF THE GOVERNMENT AND, PURSUANT TO THE STATUTORY DIRECTION, NO CONTRACT SHALL BE AWARDED TO THEM, OR TO ANY FIRM, CORPORATION, PARTNERSHIP, OR ASSOCIATION IN WHICH THEY HAVE AN INTEREST, UNTIL THREE YEARS HAVE ELAPSED FROM THE DATE OF PUBLICATION OF SUCH LIST.