B-196060, NOV 21, 1979

B-196060, NOV 21, 1979

PRECIS-UNAVAILABLE

RONNIE L. NELSON:

ENCLOSED IS A COPY OF OUR FINDING OF TODAY THAT BAXLEY ELECTRIC MOTOR WORKS, INC., AND ITS PRESIDENT, RONNIE L. NELSON, 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 UNDER CONTRACT NO. DAHA 09-76-C-0044 FOR CONSTRUCTION WORK AT FT. STEWART, GEORGIA.

PURSUANT TO THE PROVISIONS OF SECTION 3(A) OF THE ACT, THE NAMES OF THE ABOVE FIRM AND INDIVIDUAL SHALL BE INCLUDED IN A LIST FOR PUBLICATION ON DECEMBER 17, 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.

FINDING

IN THE MATTER OF BAXLEY ELECTRIC MOTOR WORKS, INC., AND RONNIE L. NELSON, INDIVIDUALLY, BAXLEY, GEORGIA.

SECTION 1 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 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. DAHA 09-76-C-0044, IN EXCESS OF $2,000, FOR THE CONSTRUCTION OF NATIONAL GUARD BARRACKS AT FT. STEWART, GEORGIA, WAS AWARDED TO JORDAN CONSTRUCTION CO., COLUMBUS, GEORGIA. THE CONTRACT CONTAINED THE STIPULATIONS AND REPRESENTATIONS REQUIRED BY SECTION 1 OF THE DAVIS-BACON ACT.

A SUBCONTRACT, IN EXCESS OF $2,000, WAS AWARDED TO BAXLEY ELECTRIC MOTOR WORKS, INC., FOR THE PERFORMANCE OF ELECTRICAL WIRING AND SERVICE INSTALLATION. THE SUBCONTRACT ALSO CONTAINED THE STIPULATIONS AND REPRESENTATIONS REQUIRED BY SECTION 1 OF THE DAVIS-BACON ACT.

AN INVESTIGATION CONDUCTED BY THE UNITED STATES DEPARTMENT OF LABOR DISCLOSED THAT THE SUBCONTRACTOR, BAXLEY ELECTRIC MOTOR WORKS, INC., 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 THIS INVESTIGATION 18 EMPLOYEES WERE FOUND TO HAVE BEEN UNDERPAID A TOTAL OF $31,765.92 IN VIOLATION OF THE TERMS OF THE DAVIS-BACON ACT. THE RECORD ALSO REVEALED THAT NOT ONLY DID THE CERTIFIED PAYROLLS CONTAIN INCORRECT INFORMATION DESIGNED TO SIMULATE COMPLIANCE WITH THE APPLICABLE LABOR STANDARDS REQUIREMENTS, BUT THE SUBCONTRACTOR FAILED TO LIST EIGHT OF ITS EMPLOYEES ON THE CERTIFIED PAYROLLS. FULL RESTITUTION TO THE EMPLOYEES WAS EVENTUALLY MADE.

BY REGISTERED LETTER DATED AUGUST 10, 1978, THE ACTING DEPUTY ADMINISTRATOR, WAGE AND HOUR DIVISION, UNITED STATES DEPARTMENT OF LABOR, NOTIFIED THE SUBCONTRACTOR IN DETAIL OF THE NATURE AND EXTENT OF THE LABOR STANDARDS VIOLATIONS. AT THE REQUEST OF THE SUBCONTRACTOR, AN INFORMAL PROCEEDING WAS HELD BY THE DEPARTMENT OF LABOR'S ASSISTANT REGIONAL ADMINISTRATOR IN ATLANTA, WHO CONCLUDED THAT THE ACTIONS BY THE SUBCONTRACTOR CONSTITUTED A WILLFUL DISREGARD OF ITS OBLIGATIONS TO ITS EMPLOYEES UNDER THE DAVIS-BACON ACT. ALTHOUGH THE SUBCONTRACTOR WAS ADVISED OF HIS APPEAL RIGHTS, NO APPEAL WAS TAKEN FROM THE ASSISTANT REGIONAL ADMINISTRATOR'S DETERMINATION.

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

WE THEREFORE FIND THAT BAXLEY ELECTRIC MOTOR WORKS, INC., AND RONNIE L. NELSON, 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 TO ANY FIRM, CORPORATION, PARTNERSHIP, JOINT VENTURE OR ASSOCIATION IN WHICH THEY OR EITHER OF THEM HAVE AN INTEREST UNTIL 3 YEARS HAVE ELAPSED FROM THE DATE OF PUBLICATION OF SUCH LIST.