B-169430, DEC. 11, 1970

B-169430: Dec 11, 1970

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THEY WILL BE INCLUDED IN THE NEXT PUBLICATION OF THE DEBARRED LIST FOR VIOLATIONS OF THAT ACT IN CONSTRUCTION PROJECTS PERFORMED IN CONNECTION WITH THE U.S. INC.: ENCLOSED IS A COPY OF OUR FINDING OF TODAY THAT MABRY. 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 LIST. NO GOVERNMENT CONTRACT WILL BE AWARDED TO THEM OR TO ANY FIRM. OR ASSOCIATION IN WHICH SUCH PERSON OR FIRM HAS AN INTEREST UNTIL THREE YEARS HAVE ELAPSED FROM THE DATE OF PUBLICATION. TO WHICH THE UNITED STATES *** IS A PARTY. 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.

B-169430, DEC. 11, 1970

DEBARMENT NOTICE NOTICE TO MARBY, INC., THAT UNDER THE PROVISIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, THEY WILL BE INCLUDED IN THE NEXT PUBLICATION OF THE DEBARRED LIST FOR VIOLATIONS OF THAT ACT IN CONSTRUCTION PROJECTS PERFORMED IN CONNECTION WITH THE U.S. POST OFFICE, BRYAN, TEXAS.

TO MABRY, INC.:

ENCLOSED IS A COPY OF OUR FINDING OF TODAY THAT MABRY, INC., AND ITS PRESIDENT, R. G. MABRY, INDIVIDUALLY, HAVE DISREGARDED OBLIGATIONS TO EMPLOYEES WITHIN THE MEANING OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, IN THE PERFORMANCE OF CONSTRUCTION AS A SUB-CONTRACTOR TO FARLEY CONSTRUCTION, INC., UNDER GENERAL SERVICES ADMINISTRATION, INC., CONTRACT NO. GS-07B-9125 TO MODERNIZE AND REFURBISH THE UNITED STATES POST OFFICE BUILDING, BRYAN, TEXAS.

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

FINDING

IN THE MATTER OF THE MABRY, INCORPORATION, AND R. G. MABRY, PRESIDENT, P.O. BOX 3242, BRYAN, TEXAS.

SECTION 1 OF THE DAVIS-BACON ACT, 46 STAT. 1494, AS AMENDED, 40 U.S.C. 276A, PROVIDES IN PART AS FOLLOWS:

"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, 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. GS-07B-9125 IN EXCESS OF $2,000 TO MODERNIZE AND REFURBISH THE UNITED STATES POST OFFICE BUILDING, BRYAN, TEXAS, WAS ENTERED INTO ON MAY 3, 1968, BY THE GENERAL SERVICES ADMINISTRATION WITH FARLEY CONSTRUCTION, INC., P.O. BOX 3235, SHREVEPORT, LOUISIANA. PORTIONS OF THE WORK WERE SUBCONTRACTED TO MABRY, INC., P.O. BOX 3242, BRYAN, TEXAS. THE CONTRACT AND SUBCONTRACT CONTAINED THE STIPULATIONS REQUIRED BY SECTION 1 OF THE DAVIS-BACON ACT. AN INVESTIGATION CONDUCTED BY THE GENERAL SERVICES ADMINISTRATION DISCLOSED THAT THE SUBCONTRACTOR, HAVING FULL KNOWLEDGE OF HIS STATUTORY AND CONTRACTUAL RESPONSIBILITIES, DISREGARDED THESE OBLIGATIONS AS EVIDENCED BY THE DELIBERATE PAYMENT OF WAGES AT SUB- MINIMUM RATES TO LABORERS AND MECHANICS EMPLOYED BY HIM ON THE SUBJECT PROJECT. AS A RESULT OF THIS INVESTIGATION, FIVE EMPLOYEES WERE FOUND TO HAVE BEEN UNDERPAID A TOTAL OF $838.92 IN VIOLATION OF THE DAVIS-BACON ACT UNDER THE TERMS OF THE PRIME AND SUBCONTRACTS. THE INVESTIGATION ALSO REVEALED THAT THE CERTIFIED PAYROLLS SUBMITTED TO THE CONTRACTING AGENCY CONTAINED INCORRECT INFORMATION DESIGNED TO SIMULATE COMPLIANCE WITH THE APPLICABLE LABOR STANDARDS REQUIREMENTS. IN PARTICULAR, THE INVESTIGATION REVEALED THAT THE FIVE EMPLOYEES WERE CLASSIFIED AND LISTED IN THE CERTIFIED PAYROLLS AS COMMON LABORERS WHILE WORKING ALL OR A PORTION OF THEIR TIME PERFORMING THE DUTIES OF PLUMBERS OR SHEET METAL WORKERS.

BY REGISTERED LETTER DATED AUGUST 26, 1970, THE GENERAL ACCOUNTING OFFICE NOTIFIED THE SUBCONTRACTOR IN DETAIL OF THE NATURE AND EXTENT OF THE DAVIS -BACON ACT VIOLATIONS CHARGED AGAINST HIM AND HE DID NOT PRESENT ANY RELEVANT EXPLANATION OR EVIDENCE IN REBUTTAL, ALTHOUGH BY LETTER DATED SEPTEMBER 3, 1970, THE SUBCONTRACTOR'S PRESIDENT STATED GENERALLY THAT HIS CERTIFIED PAYROLLS WERE THOROUGHLY CHECKED AND THAT TO HIS KNOWLEDGE HIS FIRM HAD MADE NO MISTAKES.

IT IS CLEAR, PARTICULARLY IN LIGHT OF THE FALSE PAYROLLS AND THE DELIBERATE MISCLASSIFICATIONS OF EMPLOYEES, THAT GOOD FAITH WAS NOT SHOWN IN COMPLYING WITH THE DAVIS-BACON ACT AND CONTRACTUAL PROVISIONS UNDERTAKEN THEREUNDER. ONLY THROUGH INVESTIGATION AND DETECTION OF THE MISLEADING INFORMATION FURNISHED IN THE PAYROLL REPORTS WAS IT POSSIBLE FOR THE GOVERNMENT TO ADOPT MEASURES TO PROTECT THE EMPLOYEES INVOLVED AND TO INSURE COMPLIANCE WITH THE OBLIGATIONS INCURRED BY THE SUBCONTRACTOR UNDER THE DAVIS-BACON ACT.

WE, THEREFORE, FIND THAT MABRY, INC., AND ITS PRESIDENT, MR. R. G. MABRY, INDIVIDUALLY, HAVE DISREGARDED "OBLIGATIONS TO EMPLOYEES" WITHIN THE MEANING OF THE DAVIS-BACON ACT. ACCORDINGLY, THESE NAMES WILL BE INCLUDED IN 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.