B-142533, AUG. 30, 1960

B-142533: Aug 30, 1960

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MAYBERRY: ATTACHED IS A COPY OF OUR FINDING OF TODAY THAT RAPSILVER. HAVE DISREGARDED OBLIGATIONS TO EMPLOYEES WITHIN THE MEANING OF THE DAVIS-BACON ACT. THESE NAMES WILL BE INCLUDED ON A LIST FOR PUBLICATION SEPTEMBER 1. NO GOVERNMENT CONTRACT WILL BE AWARDED TO THEM. OR ASSOCIATION IN WHICH THEY HAVE AN INTEREST. UNTIL THREE YEARS SHALL HAVE ELAPSED FROM SUCH DATE. TO WHICH THE UNITED STATES * * * IS A PARTY. - "* * * 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. 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.'.

B-142533, AUG. 30, 1960

TO MR. H. D. MAYBERRY:

ATTACHED IS A COPY OF OUR FINDING OF TODAY THAT RAPSILVER, INCORPORATED, AND H. D. MAYBERRY, INDIVIDUALLY, HAVE DISREGARDED OBLIGATIONS TO EMPLOYEES WITHIN THE MEANING OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, IN THE PERFORMANCE OF SUBCONTRACTS UNDER CONTRACT NO. NBY 17752, AWARDED TO R. S. BLACK, FOR CONSTRUCTION OF A HANGAR AT THE NAVAL AIR STATION, CORPUS CHRISTI, TEXAS.

PURSUANT TO THE PROVISIONS OF SECTION 3 (A) OF THE ACT, THESE NAMES WILL BE INCLUDED ON A LIST FOR PUBLICATION SEPTEMBER 1, 1960, AND NO GOVERNMENT CONTRACT WILL BE AWARDED TO 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 RAPSILVER, INCORPORATED, AND H. D. MAYBERRY, INDIVIDUALLY, BROOKSHIRE, 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 NBY-17752, IN EXCESS OF $2,000, FOR CONSTRUCTION OF A HANGAR AT THE NAVAL AIR STATION, CORPUS CHRISTI, TEXAS, WAS ENTERED INTO JUNE 24, 1958, BY THE UNITED STATES (BUREAU OF YARDS AND DOCKS) WITH R. S. BLACK. A PORTION OF THE WORK WAS SUBCONTRACTED TO RAPSILVER, INCORPORATED, WHO HAS ACKNOWLEDGED THE APPLICABILITY OF THE PROVISIONS AND STIPULATIONS REQUIRED BY SECTION 1 OF THE ACT.

INVESTIGATION BY THE BUREAU OF YARDS AND DOCKS OF COMPLIANCE WITH PERTINENT LABOR STANDARDS, INCLUDING PAYMENT TO EMPLOYEES OF PRESCRIBED MINIMUM WAGES, DISCLOSED THAT WORKERS WERE NOT PAID ACCRUED WAGES IN FULL AT WEEKLY INTERVALS AS REQUIRED. NONETHELESS, PAYROLL REPORTS WERE MADE TO THE GOVERNMENT FALSELY SHOWING UNDER AFFIDAVIT THAT ALL WAGES WERE PAID. THE IRREGULARITIES, THE EMPLOYEES, AND THE AMOUNTS OF WAGES INVOLVED, WERE DETAILED IN A LETTER FROM THE ACTING SOLICITOR OF LABOR TO THE SUBCONTRACTOR DATED OCTOBER 30, 1959.

IN AFFIDAVIT OF DECEMBER 17, 1959, MR. H. D. MAYBERRY, VICE PRESIDENT AND GENERAL MANAGER, EXPLAINING THAT APPROPRIATE WAGE ADJUSTMENTS HAD BEEN COMPLETED, ACKNOWLEDGED THAT "THEREAFTER, AFFIANT MADE OUT THE PAYROLL SHEETS AND SIGNED THE CERTIFICATES EACH WEEK TO REFLECT THE U.S. NAVY WAGE RATES, BUT AFFIANT DID NOT ISSUE PAYROLL CHECKS CURRENTLY TO CONFORM WITH THE WAGE RATES SHOWN IN THE PAYROLL SHEETS.'

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 DEPARTMENT OF THE NAVY HAVE RECOMMENDED IMPOSITION OF DEBARMENT.

WE THEREFORE FIND THAT RAPSILVER, INCORPORATED, AND H. D. MAYBERRY, 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 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 ..END :