B-194729, MAY 31, 1979

B-194729: May 31, 1979

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DIGEST: ENCLOSED IS A COPY OF OUR FINDING OF TODAY THAT ACME PAINTING COMPANY AND ITS OWNER AND PRESIDENT. HAVE DISREGARDED OBLIGATIONS TO EMPLOYEES WITHIN THE MEANING OF THE DAVIS-BACON ACT. NO GOVERNMENT CONTRACT WILL BE AWARDED TO EITHER OF THEM OR TO ANY FIRM. OR ASSOCIATION IN WHICH THEY OR EITHER OF THEM MAY HAVE AN INTEREST UNTIL 3 YEARS HAVE ELAPSED FROM THAT DATE. 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 WHEN HE HAS FOUND TO HAVE DISREGARDED THEIR OBLIGATIONS TO EMPLOYEES AND SUBCONTRACTORS.

B-194729, MAY 31, 1979

DIGEST: ENCLOSED IS A COPY OF OUR FINDING OF TODAY THAT ACME PAINTING COMPANY AND ITS OWNER AND PRESIDENT, C. M. BONE, HAVE DISREGARDED OBLIGATIONS TO EMPLOYEES WITHIN THE MEANING OF THE DAVIS-BACON ACT, 40 U.S.C. SEC. 276A (1976), IN THE PERFORMANCE AS A SUBCONTRACTOR OF CONTRACT NO. DAKF10-74-C- 0390 FOR THE EXTERIOR PAINTING OF BUILDINGS AT HUNTER ARMY AIRFIELD, GEORGIA. PURSUANT TO THE PROVISIONS OF SECTION 3(A) OF THE ACT, THE NAMES OF THE ABOVE INDIVIDUAL AND FIRM SHALL BE INCLUDED IN A LIST FOR PUBLICATION ON JUNE 15, 1979, AND NO GOVERNMENT CONTRACT WILL BE AWARDED TO EITHER OF THEM OR TO ANY FIRM, CORPORATION, PARTNERSHIP, JOINT VENTURE, OR ASSOCIATION IN WHICH THEY OR EITHER OF THEM MAY HAVE AN INTEREST UNTIL 3 YEARS HAVE ELAPSED FROM THAT DATE.

C. M. BONE, ACME PAINTING CO.:

IN THE MATTER OF ACME PAINTING COMPANY AND C. M. BONE, OWNER AND PRESIDENT, 3806 ELMDALE AVENUE, SAVANNAH, GEORGIA 31405.

SECTION 1(A) OF THE DAVIS-BACON ACT OF AUGUST 30, 1935, 49 STAT. 1011, 40 U.S.C. SEC. 276A (1976), 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, 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 WHEN 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. DAKF10-74-C-0390 IN THE AMOUNT OF $128,515 FOR THE EXTERIOR PAINTING OF 154 BUILDINGS AT HUNTER ARMY AIRFIELD, GEORGIA, WAS AWARDED BY THE DEPARTMENT OF THE ARMY TO C. T. BONE, INC., BUTLER, GEORGIA. THE CONTRACT CONTAINED THE STIPULATIONS AND REPRESENTATIONS REQUIRED BY SECTION 1 OF THE DAVIS-BACON ACT.

A SUBCONTRACT FOR THE ENTIRE JOB WAS AWARDED TO ACME PAINTING COMPANY ON JULY 7, 1974. THE STIPULATIONS AND REPRESENTATIONS REQUIRED BY SECTION 1 OF THE DAVIS-BACON ACT WERE INCORPORATED INTO THE SUBCONTRACT.

INVESTIGATIONS, WHICH WERE CONDUCTED BY BOTH THE WAGE AND HOUR DIVISION OF THE UNITED STATES DEPARTMENT OF LABOR AND THE UNITED STATES DEPARTMENT OF THE ARMY, DISCLOSED THAT THE SUBCONTRACTOR, ACME PAINTING COMPANY, HAVING FULL KNOWLEDGE OF ITS STATUTORY AND CONTRACTUAL RESPONSIBILITIES, DID NEVERTHELESS DISREGARD THESE OBLIGATIONS AS EVIDENCED BY THE DELIBERATE PAYMENT OF SUBMINIMUM WAGE RATES TO PERSONS EMPLOYED BY IT ON SUBJECT PROJECT. AS A RESULT OF THESE INVESTIGATIONS, 45 EMPLOYEES WERE FOUND TO HAVE BEEN UNDERPAID A TOTAL OF $4,101.10 IN VIOLATION OF THE TERMS OF THE DAVIS-BACON ACT. THE RECORD 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 APRIL 12, 1977, THE ASSISTANT ADMINISTRATOR OF THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF LABOR NOTIFIED THE ABOVE-NAMED SUBCONTRACTOR IN DETAIL OF THE NATURE AND EXTENT OF THE LABOR STANDARDS VIOLATIONS. AT THE REQUEST OF THE SUBCONTRACTOR, INFORMAL PROCEEDINGS WERE HELD BY THE LABOR DEPARTMENT'S ASSISTANT REGIONAL ADMINISTRATOR OF THE ATLANTA REGION'S WAGE AND HOUR DIVISION ON JULY 12, 1977, ATTENDED BY REPRESENTATIVES OF THE DEPARTMENT OF THE ARMY AND THE DEPARTMENT OF LABOR. AT THIS PROCEEDING THE ASSISTANT REGIONAL ADMINISTRATOR HELD THAT:

"NO FACTS OR CIRCUMSTANCES WERE PRESENTED WHICH MIGHT JUSTIFY THE SUBMISSION OF FALSE PAYROLL RECORDS TO THE DEPARTMENT OF THE ARMY, AND THE ACTUAL PAYMENT OF HOURLY WAGE RATES WHICH WERE LESS THAN THOSE SHOWN ON THE CERTIFIED PAYROLLS."

HE RECOMMENDED THAT DEBARMENT ACTION BE TAKEN. THE SUBCONTRACTOR APPEALED THIS DECISION TO THE ADMINISTRATOR, WAGE AND HOUR DIVISION, WHO BY DECISION OF OCTOBER 27, 1977, AFFIRMED THE ASSISTANT REGIONAL ADMINISTRATOR'S DECISION. THE SUBCONTRACTOR SUBSEQUENTLY APPEALED THE ADMINISTRATOR'S DECISION TO THE WAGE APPEALS BOARD, WHICH BY DECISION OF JUNE 7, 1978, AFFIRMED THE ADMINISTRATOR'S DECISION. BY DECISION OF SEPTEMBER 13, 1978, THE WAGE APPEALS BOARD DENIED AND DISMISSED THE SUBCONTRACTOR'S MOTION FOR RECONSIDERATION.

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

WE THEREFORE FIND THAT ACME PAINTING COMPANY AND C. M. BONE, INDIVIDUALLY, HAVE DISREAGRDED "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 REQUIREMENT AND NO CONTRACT SHALL BE AWARDED TO THEM OR TO ANY FIRM, CORPORATION, PARTNERSHIP, JOINT VENTURE OR ASSOCIATION, IN WHICH THEY OR EITHER OF THEM HAS AN INTEREST UNTIL 3 YEARS HAVE ELAPSED FROM THE DATE OF PUBLICATION OF SUCH LIST.