B-197817.OM, L/M, MAR 17, 1980

B-197817.OM, L/M, MAR 17, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING THE FILE PERTAINING TO THE APPARENT VIOLATIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, BY FEDERAL CONSTRUCTION STANDARDS, INC. (SUBCONTRACTOR) WHICH PERFORMED WORK UNDER DEPARTMENT OF NAVY CONTRACT NO. N62477-75-C-0123 AT ANDREWS AFB, CAMP SPRINGS, MARYLAND.

DETAILS OF THE VIOLATIONS AND ADMINISTRATIVE RECOMMENDATIONS CONCERNING DEBARMENT ARE CONTAINED IN THE ATTACHED INVESTIGATIVE REPORT AND DEPARTMENT OF LABOR TRANSMITTAL LETTER.

WE PROPOSE, WITH YOUR APPROVAL, TO DISBURSE THE $1,701.87 ON DEPOSIT HERE TO THE 9 AGGRIEVED WORKERS IN ACCORDANCE WITH ESTABLISHED PROCEDURES. OUR PROPOSAL AND THE MATTER OF WHETHER THE CONTRACTOR'S NAME SHOULD BE PLACED ON THE DEBARRED BIDDERS LIST FOR VIOLATIONS UNDER THE DAVIS-BACON ACT ARE FORWARDED FOR YOUR CONSIDERATION AND INSTRUCTIONS.

FOR FURTHER INFORMATION, PLEASE CONTACT MS. MARCIA BROWN ON EXTENSION 53218.

CONGRESSMAN MARTIN FROST IS INTERESTED IN THIS MATTER.

INDORSEMENT

DIRECTOR, CLAIMS DIVISION

RETURNED. THE SUBCONTRACTOR, FEDERAL CONSTRUCTION STANDARDS, INC., WAS AWARDED A SUBCONTRACT FOR THE ASSEMBLY OF METAL WARDROBES UNDER DEPARTMENT OF NAVY CONTRACT N62477-75-C-0123 AT ANDREWS AIR FORCE BASE, CAMP SPRINGS, MARYLAND. THE SUBCONTRACTOR LISTED EMPLOYEES UNDER THE CLASSIFICATION OF "WARDROBE ASSEMBLERS" AND PAID THEM A WAGE RATE WHICH WAS LESS THAN THE WAGE RATE FOR SHEETMETAL WORKERS, WHICH WAS CONSIDERED TO BE THE APPLICABLE CLASSIFICATION FOR WORKERS PERFORMING THE WORK IN QUESTION. AMOUNT SUFFICIENT TO COVER THE DIFFERENCE BETWEEN WHAT THE WORKER'S RECEIVED AND THE AMOUNT THAT THEY WOULD HAVE RECEIVED AS SHEETMETAL WORKERS WAS WITHHELD FROM THE CONTRACTOR. THE SUBCONTRACTOR SUBMITTED A REQUEST FOR THE ESTABLISHMENT OF THE CLASSIFICATION OF "FURNITURE (WARDROBE) SET UP MEN." THIS REQUEST WAS DISAPPROVED BY THE NAVY ON THE BASIS THAT THE CLASSIFICATION OF SHEETMETAL WORKER WAS APPLICABLE. APPEAL THE DEPARTMENT OF LABOR CONCURRED IN THE POSITION TAKEN BY THE NAVY.

OUR OFFICE HAS HELD THAT A DETERMINATION BY THE SECRETARY OF LABOR TO INCLUDE OR OMIT A PARTICULAR CLASSIFICATION OF WORKERS IN A WAGE DETERMINATION IS NOT SUBJECT TO REVIEW BY THE COURTS, OR BY A GOVERNMENT AGENCY. SEE NELLO L. TEER COMPANY V. UNITED STATES, 348 F.2D 533 (1965); UNIVERSITY MECHANICAL AND ENGINEERING CONTRACTORS, INC., B-190004, SEPTEMBER 28, 1977, 77-2 CPD 238; B-164376, NOVEMBER 12, 1970.

SINCE OUR OFFICE IS PRECLUDED FROM REVIEWING THIS MATTER AND THERE APPEARS TO BE NO DISPUTE AS TO THE AMOUNT OF THE UNDERPAYMENTS, THERE BEING A FINAL DETERMINATION THAT THE WORKERS SHOULD HAVE BEEN CLASSIFIED AS SHEETMETAL WORKERS, THE FUNDS ON DEPOSIT WITH YOUR OFFICE MAY BE DISBURSED TO THE AGGRIEVED WORKERS IN ACCORDANCE WITH ESTABLISHED PROCEDURES.

FINALLY, SINCE THE UNDERPAYMENTS WERE THE RESULT OF A CLASSIFICATION DISPUTE, RATHER THAN A WILLFUL INTENT ON THE PART OF THE SUBCONTRACTOR TO UNDERPAY ITS EMPLOYEES, WE ARE OF THE VIEW THAT DEBARMENT IS UNWARRANTED. SEE B-189542-O.M., AUGUST 30, 1977.