B-199693.OM, DEC 30, 1980

B-199693.OM: Dec 30, 1980

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HAVE REQUESTED RECONSIDERATION OF THE OCTOBER 15. WE NOTE THAT THE AFFIDAVITS WERE EXECUTED 3 TO 4 MONTHS PRIOR TO WHEN KRAMER MADE RESTITUTION. FOR SOME UNEXPLAINED REASON THESE AFFIDAVITS WERE NOT INCLUDED IN THE ORIGINAL RECORD UPON WHICH WE BASED OUR DECISION TO DEBAR. WE HAVE NO BASIS FOR NOT ACCEPTING THESE AFFIDAVITS AS TRUE STATEMENTS OF FACT. THE EVIDENCE OF RECORD IS SUFFICIENT TO ESTABLISH THAT THE TWELFTH WORKER WAS UNDERPAID. GAO WILL REMOVE CONTRACTOR'S NAME FROM DEBARRED BIDDERS LIST. AFFIDAVITS WERE NOT INCLUDED IN RECORD UPON WHICH GAO MADE DETERMINATION TO DEBAR CONTRACTOR.

B-199693.OM, DEC 30, 1980

SUBJECT: DEBARMENT OF KRAMER ELECTRIC AND ITS OWNER, PAUL SCHNEIDER, JR., FOR VIOLATION OF THE DAVIS-BACON ACT.

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP:

KRAMER ELECTRIC AND ITS OWNER, PAUL SCHNEIDER, JR., HAVE REQUESTED RECONSIDERATION OF THE OCTOBER 15, 1980, DEBARMENT OF KRAMER ELECTRIC AND ITS OWNER, PAUL SCHNEIDER, JR. (HENCEFORTH REFERRED TO COLLECTIVELY AS KRAMER), FOR VIOLATION OF THE DAVIS-BACON ACT, 40 U.S.C. SEC. 276A (1976).

IN ITS REQUEST FOR RECONSIDERATION KRAMER SUBMITTED NOTARIZED AFFIDAVITS, ALL DATED NOVEMBER 20, 1978, FROM 11 OF THE WORKERS STATING THAT THEY HAD, IN FACT, BEEN PAID $14 PER HOUR FOR WORK PERFORMED AT SCOTT AIR FORCE BASE. WE NOTE THAT THE AFFIDAVITS WERE EXECUTED 3 TO 4 MONTHS PRIOR TO WHEN KRAMER MADE RESTITUTION, UNDER "DURESS," TO THESE EMPLOYEES. FOR SOME UNEXPLAINED REASON THESE AFFIDAVITS WERE NOT INCLUDED IN THE ORIGINAL RECORD UPON WHICH WE BASED OUR DECISION TO DEBAR. HOWEVER, WE HAVE NO BASIS FOR NOT ACCEPTING THESE AFFIDAVITS AS TRUE STATEMENTS OF FACT. THIS, COUPLED WITH THE FACT THAT APPARENTLY KRAMER DID NOT RECEIVE NOTICE OF THE DEBARMENT PROCEEDINGS PRIOR TO ITS DEBARMENT, LEADS US TO THE CONCLUSION THAT KRAMER'S NAME SHOULD BE REMOVED FROM THE DEBARRED BIDDERS LIST.

HOWEVER, THE EVIDENCE OF RECORD IS SUFFICIENT TO ESTABLISH THAT THE TWELFTH WORKER WAS UNDERPAID. THEREFORE, THE FUNDS ON DEPOSIT WITH YOUR OFFICE MAY BE DISBURSED TO THE AGGRIEVED EMPLOYEE IN ACCORDANCE WITH ESTABLISHED PROCEDURES.

DIGEST

WHERE DEBARRED CONTRACTOR, IN ITS REQUEST FOR REMOVAL FROM DEBARRED BIDDERS LIST, SUBMITS NOTARIZED AFFIDAVITS FROM ELEVEN OF TWELVE ALLEGEDLY UNDERPAID WORKERS STATING THAT THEY HAD BEEN PAID IN EXCESS OF WAGE RATE REQUIRED BY DAVIS-BACON ACT, GAO WILL REMOVE CONTRACTOR'S NAME FROM DEBARRED BIDDERS LIST. AFFIDAVITS WERE NOT INCLUDED IN RECORD UPON WHICH GAO MADE DETERMINATION TO DEBAR CONTRACTOR.