B-144944, FEB. 23, 1961

B-144944: Feb 23, 1961

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HENRY TUNKEL: ENCLOSED IS A COPY OF OUR FINDING OF TODAY THAT HENRY TUNKEL AND L. TUNKEL HAVE DISREGARDED OBLIGATIONS TO EMPLOYEES WITHIN THE MEANING OF THE DAVIS-BACON ACT. THESE NAMES WILL BE INCLUDED ON A LIST FOR PUBLICATION MARCH 1. NO GOVERNMENT CONTRACT WILL BE AWARDED TO ANY OF 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.

B-144944, FEB. 23, 1961

TO MR. HENRY TUNKEL:

ENCLOSED IS A COPY OF OUR FINDING OF TODAY THAT HENRY TUNKEL AND L. AND H. TUNKEL HAVE DISREGARDED OBLIGATIONS TO EMPLOYEES WITHIN THE MEANING OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, UNDER CONTRACT DA-30 075-ENG-8982, COVERING SITE PREPARATION FOR AN AUTOMATIC DATA PROCESSING SYSTEM AT THE BROOKLYN ARMY TERMINAL, NEW YORK.

PURSUANT TO THE PROVISIONS OF SECTION 3 (A) OF THE ACT, THESE NAMES WILL BE INCLUDED ON A LIST FOR PUBLICATION MARCH 1, 1961, AND NO GOVERNMENT 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 HENRY TUNKEL AND L AND H. TUNKEL, BROOKLYN, NEW YORK.

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-30-075-ENG-8982, IN EXCESS OF $2,000, COVERING SITE PREPARATION FOR AN AUTOMATIC DATA PROCESSING SYSTEM AT THE BROOKLYN ARMY TERMINAL, NEW YORK, WAS ENTERED INTO JUNE 29, 1959, BY THE UNITED STATES (DEPARTMENT OF THE ARMY) WITH THE KENSIL-HEDEMAN COMPANY, INCORPORATED. PORTIONS OF THE WORK WERE SUBCONTRACTED TO L. AND H. TUNKEL (A SECOND TIER SUBCONTRACTOR) AND HENRY TUNKEL, THE PROPRIETOR, HAS ACKNOWLEDGED THE APPLICABILITY OF REQUIREMENTS IN SECTION 1 OF THE ACT.

INVESTIGATION BY THE CORPS OF ENGINEERS OF COMPLIANCE WITH PERTINENT LABOR STANDARDS, INCLUDING PAYMENT TO EMPLOYEES OF PRESCRIBED MINIMUM WAGES, DISCLOSED THAT THREE (3) WORKERS HAD BEEN UNDERPAID IN THE TOTAL AMOUNT OF $606.40 AND THAT, NONETHELESS, PAYROLL AFFIDAVITS HAD BEEN FURNISHED TO THE GOVERNMENT FALSELY SHOWING FULL PAYMENT OF REQUIRED WAGES. THE SUBCONTRACTOR ADMITTED THE UNDERPAYMENTS AND IRREGULARITIES TO INVESTIGATORS AND MADE NECESSARY ADJUSTMENTS WHEN THEY WERE BROUGHT TO LIGHT.

MR. TUNKEL INFORMED INVESTIGATORS THAT HE HAD ARRANGED WITH EMPLOYEES TO ACCEPT WAGES LOWER THAN THOSE PRESCRIBED, WHICH WERE TO BE SUPPLEMENTED AT A LATER DATE. HOWEVER, NO SUCH ARRANGEMENTS WERE DISCLOSED TO THE GOVERNMENT, EVEN IF IT COULD BE ESTABLISHED THAT THEY EXISTED AND WERE PERMITTED BY THE CONTRACT AND ACT.

IT IS CLEAR, PARTICULARLY IN THE LIGHT OF THE FALSE PAYROLLS SUBMITTED, 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 THE ARMY AND THE DEPARTMENT OF LABOR HAVE RECOMMENDED IMPOSITION OF DEBARMENT.

WE THEREFORE FIND THAT HENRY TUNKEL, INDIVIDUALLY, AND L. AND H. TUNKEL HAVE DISREGARDED ,OBLIGATIONS TO EMPLOYEES" WITHIN THE MEANING OF THE DAVIS-BACON ACT. ACCORDINGLY, THEIR 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 ELAPSED FROM ..END :