B-168272, JAN. 27, 1970

B-168272, JAN. 27, 1970

CONTRACTS--DAVIS-BACON ACT FINDING THAT CONTRACTOR IN PERFORMANCE OF EXTERIOR PAINTING OF FAMILY HOUSING UNITS AT MCGUIRE AIR FORCE BASE HAS DISREGARDED OBLIGATIONS TO CERTAIN EMPLOYEES AND WILL BE DEBARRED.

TO MR. JULIAN DWYER:

ENCLOSED IS A COPY OF OUR FINDING OF TODAY THAT YOU HAVE DISREGARDED OBLIGATIONS TO CERTAIN OF YOUR EMPLOYEES WITHIN THE MEANING OF THE DAVIS- BACON ACT, 40 U.S.C. 276A, IN THE PERFORMANCE OF EXTERIOR PAINTING OF FAMILY HOUSING UNITS AT MCGUIRE AIR FORCE BASE, NEW JERSEY, UNDER CONTRACT NO. AF28(609)-4261.

PURSUANT TO THE PROVISIONS OF SECTION 3(A) OF THE ACT, YOUR NAME WILL BE INCLUDED IN A LIST FOR PUBLICATION ON THE NEXT LISTING, AND NO GOVERNMENT CONTRACT WILL BE AWARDED TO YOU OR TO ANY FIRM, CORPORATION, PARTNERSHIP, OR ASSOCIATION IN WHICH YOU HAVE AN INTEREST UNTIL THREE YEARS HAVE ELAPSED FROM THAT DATE.

FINDING

IN THE MATTER OF JULES DWYER, ALSO KNOWN AS JULIAN DWYER, RR #3, BOX 233A, WEYMOUTH ROAD, BROWNS MILLS, NEW JERSEY 08015.

SECTION 1(A) OF THE DAVIS-BACON ACT OF AUGUST 30, 1935, 49 STAT. 1011, 40 U.S.C. 276(A), 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, ALTERATIONS, AND/OR REPAIR, INCLUDING PAINTING AND DECORATING, OF 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. AF28(609)-4261, IN EXCESS OF $2,000, FOR EXTERIOR PAINTING OF FAMILY HOUSING UNITS AT MCGUIRE AIR FORCE BASE, NEW JERSEY, WAS AWARDED BY THE DEPARTMENT OF THE AIR FORCE, IN MAY 1966, TO JULES DWYER, THEN AT 224 GRAY AVENUE, TOMS RIVER, NEW JERSEY. THE CONTRACT CONTAINED THE STIPULATIONS AND REPRESENTATIONS REQUIRED BY SECTION 1 OF THE DAVIS-BACON ACT.

AN INVESTIGATION CONDUCTED BY THE DEPARTMENT OF THE AIR FORCE DISCLOSED THAT IN THE PERFORMANCE OF THE CONTRACT, THE CONTRACTOR ATTEMPTED TO CIRCUMVENT THE LABOR STANDARDS PROVISIONS OF THE CONTRACT BY ENTERING INTO A SUBCONTRACT WITH ONE OF HIS PAINTERS, WALTER MURPHY, AGREEING TO PAY HIM $200 FOR EACH SINGLE UNIT BUILDING PAINTED AND $1,000 FOR EACH OF THE THREE MULTI-UNIT BUILDINGS. FROM THESE SUMS MR. MURPHY WAS TO PAY HIS "CREW" AND DIVIDE THE REMAINDER BETWEEN HIMSELF AND DAVE ANDERSON, HIS ALLEGED PARTNER. MR. MURPHY'S SO-CALLED CREW RECEIVED $2.50 PER HOUR RATHER THAN THE PRESCRIBED RATE OF $4.30 PER HOUR. AS A RESULT OF THIS INVESTIGATION FOUR EMPLOYEES WERE FOUND TO HAVE BEEN UNDERPAID A TOTAL OF $3,082.32 IN VIOLATION OF THE DAVIS-BACON ACT UNDER THE TERMS OF THE CONTRACT. THE INVESTIGATION REPORT REVEALED THAT THE CONTRACTOR FALSIFIED HIS PAYROLL RECORDS TO INDICATE COMPLIANCE WITH THE LABOR STANDARDS PROVISIONS OF THE CONTRACT. THE REPORT ALSO REVEALED THAT JESS MURPHY AND RAYMOND MURPHY, WHO WERE SUPPOSEDLY EMPLOYED BY THE ALLEGED SUBCONTRACTOR, WERE CARRIED ON THE PAYROLLS OF BOTH THE CONTRACTOR AND THE ALLEGED SUBCONTRACTOR FOR A PERIOD OF ONE WEEK AND SIX WEEKS, RESPECTIVELY; ALSO, THAT WALTER MURPHY, THE ALLEGED SUBCONTRACTOR, WAS CARRIED ON THE CONTRACTOR'S PAYROLL FOR 18 WEEKS OF THE 20 WEEK CONTRACT PERIOD, AND DAVE ANDERSON, HIS ALLEGED PARTNER, FOR 14 OF THE 20 WEEKS.

THE REPORT SHOWS THAT THE CONTRACTOR KEPT RECORDS AND MADE DEDUCTIONS FOR THESE INDIVIDUALS WHILE THEY WERE CARRIED ON HIS PAYROLL AND SENT OUT W-2 FORMS TO WALTER MURPHY AND DAVE ANDERSON. ADDITIONALLY, BOTH RAY MURPHY AND DAVE ANDERSON TESTIFIED THAT THEY WORKED FOR JULES DWYER RATHER THAN WALTER MURPHY. EXISTENCE OF THE ALLEGED SUBCONTRACT WAS UNKNOWN TO THE AIR FORCE DURING THE CONTRACT PERIOD, SINCE NEITHER THE PRIME CONTRACTOR NOR THE ALLEGED SUBCONTRACTOR SUBMITTED WEEKLY PAYROLLS AS REQUIRED BY THE LABOR STANDARDS PROVISIONS. IT IS ALSO NOTED THAT NEITHER WALTER MURPHY NOR DAVE ANDERSON, BOTH REGULARLY EMPLOYED AS PAINTERS, HAD EQUIPMENT OF THEIR OWN OR HAD EVER HELD THEMSELVES OUT AS CONTRACTORS OR SUBCONTRACTORS, NOR HAD EITHER OF THEM ANY EQUIPMENT, MONEY OR SUPPLIES INVESTED IN THE ALLEGED SUBCONTRACT. THERE IS NO EVIDENCE THAT WALTER MURPHY AND DAVE ANDERSON WERE OR HAD EVER BEEN PARTNERS. THE CONTRACTOR REFUSED TO MAKE RESTITUTION AND SINCE THE VIOLATIONS WERE DISCOVERED SUBSEQUENT TO FINAL CONTRACT PAYMENT, NO FUNDS WERE AVAILABLE TO PAY THE AGGRIEVED EMPLOYEES.

BY REGISTERED LETTER DATED APRIL 14, 1969, TO HIS ORIGINAL HOME ADDRESS, AND BY REGISTERED LETTER DATED APRIL 30, 1969, TO A SECOND REPORTED HOME ADDRESS, THE DEPARTMENT OF LABOR NOTIFIED THE SUBJECT CONTRACTOR IN DETAIL OF THE NATURE AND EXTENT OF THE LABOR STANDARDS VIOLATIONS CHARGED AGAINST HIM. BOTH LETTERS WERE RETURNED WITH THE NOTATION "MOVED, LEFT NO ADDRESS."

IT IS CLEAR, PARTICULARLY IN LIGHT OF THE FALSE PAYROLLS, THAT GOOD FAITH WAS NOT SHOWN IN COMPLYING WITH THE ACT AND CONTRACTUAL PROVISIONS. BOTH THE DEPARTMENT OF THE AIR FORCE AND DEPARTMENT OF LABOR HAVE RECOMMENDED IMPOSITION OF DEBARMENT.

WE THEREFORE FIND THAT JULES DWYER, ALSO KNOWN AS JULIAN DWYER, HAS WILLFULLY DISREGARDED HIS "OBLIGATIONS TO EMPLOYEES" WITHIN THE MEANING OF THE DAVIS-BACON ACT. ACCORDINGLY, HIS NAME 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 HIM OR TO ANY FIRM, CORPORATION, PARTNERSHIP OR ASSOCIATION IN WHICH HE HAS AN INTEREST UNTIL THREE YEARS HAVE ELAPSED FROM THE DATE OF PUBLICATION OF SUCH LIST.