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B-197900.OM, OCT 31, 1980

B-197900.OM Oct 31, 1980
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PRECIS-UNAVAILABLE COMPTROLLER GENERAL: WE ARE FORWARDING THE FILE PERTAINING TO THE APPARENT VIOLATIONS OF THE DAVIS-BACON ACT. HAD NOT BEEN UNDERPAID AND ARE. WHICH IS IN CONFLICT WITH THEIR SWORN STATEMENTS MADE TO THE OFFICER INVESTIGATING THE ALLEGED VIOLATIONS. WHICH WAS PART OF THE ADDITIONAL EVIDENCE FURNISHED OUR OFFICE. SHIRES AND WEINRICH WERE UNDERPAID. WAS SUFFICIENT TO OVERCOME THE CONFLICT BETWEEN HIS LABOR STANDARDS INTERVIEW AND HIS SWORN STATEMENT. WE ARE OF THE VIEW THAT THE RECORD. IS SUFFICIENT TO SUPPORT THE ALJ'S DETERMINATION THAT THE ONLY WORKERS UNDERPAID WERE MESSRS.

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B-197900.OM, OCT 31, 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, THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT, 40 U.S.C. 327 ET SEQ., BY CUSTOM EXTERIORS, INC., WHICH PERFORMED WORK UNDER DEPARTMENT OF THE AIR FORCE CONTRACT NO. F 04699 75-C -0015 AT MCCLELLAN AIR FORCE BASE, CALIFORNIA.

THE FILE REQUIRES A DETERMINATION OF THE CORRECTNESS OF THE ADMINISTRATIVE LAW JUDGE'S RULING THAT MESSRS. KEARNEY, SIMMONS AND RAY, JR., HAD NOT BEEN UNDERPAID AND ARE, THEREFORE, NOT ENTITLED TO BACK WAGES.

FOR FURTHER INFORMATION, PLEASE CONTACT MARCIA BROWNE ON EXTENSION 53218.

INDORSEMENT

ASSOCIATE DIRECTOR, FGMS DIVISION-CLAIMS GROUP

RETURNED. IN OUR INDORSEMENT OF APRIL 21, 1980, B-197900-O.M., WE AUTHORIZED THE DISBURSEMENT OF $5,205.10, FOUND BY THE ADMINISTRATIVE LAW JUDGE (ALJ) TO BE DUE MESSRS. EASTON, LOCKE, SHIRES, AND WEINRICH, STATING THAT THE RECORD ESTABLISHED THE WORKERS' ENTITLEMENT TO THIS AMOUNT. HOWEVER, THE AIR FORCE DETERMINED, PRIOR TO THE ALJ'S DETERMINATION, THAT SEVEN WORKERS, INCLUDING THE FOUR ABOVE, HAD BEEN UNDERPAID A TOTAL OF $8,789.94 AND THE RECORD THEN BEFORE OUR OFFICE OFFERED NO EXPLANATION AS TO WHY THE ALJ DID NOT DETERMINE THAT THREE OF THE WORKERS, MESSRS. KEARNEY, SIMMONS AND RAY, HAD ALSO BEEN UNDERPAID. THEREFORE, WE REFUSED TO AUTHORIZE THE DISBURSAL OF THE BALANCE OF THE FUNDS TO THE CONTRACTOR, AS DIRECTED BY THE ALJ, UNTIL SUCH TIME AS WE REVIEWED ADDITIONAL EVIDENCE.

WE NOTE THAT THE LATTER THREE INDIVIDUALS, AS WELL AS MR. SHIRES, INDICATED IN THEIR LABOR STANDARDS INTERVIEW THAT THEY HAD BEEN PROPERLY CLASSIFIED AND PAID, WHICH IS IN CONFLICT WITH THEIR SWORN STATEMENTS MADE TO THE OFFICER INVESTIGATING THE ALLEGED VIOLATIONS. A REVIEW OF THE NOVEMBER 29, 1977, HEARING, CONDUCTED BY THE ALJ, WHICH WAS PART OF THE ADDITIONAL EVIDENCE FURNISHED OUR OFFICE, CONVINCES US THAT MESSRS. EASTON, LOCKE, SHIRES AND WEINRICH WERE UNDERPAID. IN THE CASE OF MR. SHIRES, WE BELIEVE THAT HIS TESTIMONY, GIVEN UNDER OATH AND SUBJECT TO CROSS-EXAMINATION, WAS SUFFICIENT TO OVERCOME THE CONFLICT BETWEEN HIS LABOR STANDARDS INTERVIEW AND HIS SWORN STATEMENT. MESSRS. KEARNEY, SIMMONS AND RAY DID NOT TESTIFY AT THE NOVEMBER 29, 1977, HEARING.

WE ARE OF THE VIEW THAT THE RECORD, TAKEN AS A WHOLE, IS SUFFICIENT TO SUPPORT THE ALJ'S DETERMINATION THAT THE ONLY WORKERS UNDERPAID WERE MESSRS. EASTON, LOCKE, SHIRES AND WEINRICH.

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