B-168261, MAY 8, 1970

B-168261: May 8, 1970

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INC.: ENCLOSED IS A COPY OF OUR FINDING OF TODAY THAT JOE PAYNE & SON. HAVE DISREGARDED OBLIGATIONS TO EMPLOYEES WITHIN THE MEANING OF THE DAVIS-BACON ACT. THESE NAMES WILL BE INCLUDED IN THE NEXT PUBLICATION OF THE DEBARRED BIDDERS' LIST. OR ASSOCIATION IN WHICH ANY ONE OR MORE OF THEM HAS AN INTEREST UNTIL THREE YEARS HAVE ELAPSED FROM THE DATE OF PUBLICATION. 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-168261, MAY 8, 1970

TO JOE PAYNE & SON, INC.:

ENCLOSED IS A COPY OF OUR FINDING OF TODAY THAT JOE PAYNE & SON, INC; AND JOE PAYNE, PRESIDENT AND GERALD PAYNE, VICE PRESIDENT, INDIVIDUALLY, HAVE DISREGARDED OBLIGATIONS TO EMPLOYEES WITHIN THE MEANING OF THE DAVIS-BACON ACT, 49 STAT. 1011, 40 U.S.C. 276A, IN THE PERFORMANCE AS A SUBCONTRACTOR UNDER CONTRACT NO. AF 08(602)-3265 AWARDED TO THE LILES CONSTRUCTION COMPANY, INC; BY THE DEPARTMENT OF THE AIR FORCE ON SEPTEMBER 21, 1964.

PURSUANT TO THE PROVISIONS OF SECTION 3 (A) OF THE ACT, THESE NAMES WILL BE INCLUDED IN THE NEXT PUBLICATION OF THE DEBARRED BIDDERS' LIST, AND NO GOVERNMENT CONTRACT MAY BE AWARDED TO THEM OR EITHER OF THEM OR TO ANY FIRM, CORPORATION, PARTNERSHIP, OR ASSOCIATION IN WHICH ANY ONE OR MORE OF THEM HAS AN INTEREST UNTIL THREE YEARS HAVE ELAPSED FROM THE DATE OF PUBLICATION.

FINDING

IN THE MATTER OF JOE PAYNE & SON, INC; AND JOE PAYNE, PRESIDENT, AND GERALD PAYNE, VICE PRESIDENT, 2101 FLORIDA AVENUE, TAMPA, FLORIDA.

SECTION 1 (A) 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 NO. AF 08(602)-3265 IN EXCESS OF $2,000, FOR ALTERATIONS, REPAIRS, AND IMPROVEMENTS OF WHERRY HOUSING UNITS AT MACDILL AIR FORCE BASE, TAMPA, FLORIDA, WAS ENTERED INTO ON SEPTEMBER 21, 1964, BY THE DEPARTMENT OF THE AIR FORCE WITH THE LILES CONSTRUCTION COMPANY, INC; MONTGOMERY, ALABAMA. PORTIONS OF THE WORK WERE SUBCONTRACTED TO JOE PAYNE AND SON, INC; TAMPA, FLORIDA.

THE CONTRACT AND SUBCONTRACT CONTAINED THE STIPULATIONS AND REPRESENTATIONS REQUIRED BY SECTION 1 (A) OF THE ACT.

AN INVESTIGATION CONDUCTED BY THE DEPARTMENT OF THE AIR FORCE IDSCLOSED THAT THE SUBCONTRACTOR HAVING FULL KNOWLEDGE OF HIS STATUTORY AND CONTRACTUAL RESPONSIBILITIES DID NEVERTHELESS DISREGARD THOSE OBLIGATIONS AS EVIDENCED BY THE DELIBERATE PAYMENT OF SUB-MINIMUM WAGE RATES TO LABORERS AND MECHANICS EMPLOYED ON THE SUBJECT PROJECT. AS A RESULT OF THIS INVESTIGATION 60 EMPLOYEES WERE FOUND TO HAVE BEEN UNDERPAID A TOTAL OF $5,076.36 IN VIOLATION OF THE DAVIS-BACON ACT UNDER THE TERMS OF THE CONTRACT. THE INVESTIGATION REPORT ALSO REVEALED THAT CERTIFIED PAYROLLS SUBMITTED TO THE CONTRACTING AGENCY CONTAINED INCORRECT INFORMATION DESIGNED TO SIMULATE COMPLIANCE WITH THE APPLICABLE LABOR STANDARDS REQUIREMENTS.

BY REGISTERED LETTER DATED MARCH 11, 1970, THE GENERAL ACCOUNTING OFFICE ATTEMPTED TO NOTIFY THE SUBCONTRACTOR IN DETAIL OF THE NATURE AND EXTENT OF THE LABOR STANDARDS VIOLATIONS, AND AFFORD IT AN OPPORTUNITY TO REFUTE THESE CHARGES, BUT SUCH LETTER WAS RETURNED "UNCLAIMED."

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 FURNISHED IN THE PAYROLL REPORTS WAS IT POSSIBLE FOR THE GOVERNMENT TO ADOPT MEASURES PROTECTING THE EMPLOYEES INVOLVED AND ENSURING COMPLIANCE. THE DEPARTMENT OF THE AIR FORCE HAS RECOMMENDED IMPOSITION OF DEBARMENT.

WE, THEREFORE, FIND THAT JOE PAYNE & SON, INC; AND JOE PAYNE, PRESIDENT AND GERALD PAYNE, VICE PRESIDENT, 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 PURSUANT TO THE STATUTORY REQUIREMENTS, AND NO CONTRACT SHALL BE AWARDED TO THEM OR 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.