B-199704.OM, AUG 29, 1980

B-199704.OM, AUG 29, 1980

DIVISION OF FINANCIAL AND GENERAL MANAGEMENT STUDIES:

COMPTROLLER GENERAL:

HERE IS THE FILE PERTAINING TO THE APPARENT VIOLATIONS OF THE DAVIS BACON ACT, 40 U.S.C. 276A, BY NORTHERN VIRGINIA CONSTRUCTION CORPORATION WHICH PERFORMED WORK UNDER DEPARTMENT OF THE ARMY, CONTRACT NO. DAAG10-77-C-0806 AT SHARPE ARMY DEPOT, LATHROP, CALIFORNIA 95331.

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 $5,605.87 ON DEPOSIT HERE TO THE 36 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 KEN SCHUTT ON EXTENSION 53218.

INDORSEMENT

ASSOCIATE DIRECTOR, FGMS DIVISION-CLAIMS GROUP

RETURNED. THE RECORD INDICATES THAT THE PREVAILING AREA PRACTICE WAS TO USE ROOFERS, RATHER THAN LABORERS, TO TEAR OFF OLD ROOFING. OUR OFFICE HAS HELD THAT PREVAILING AREA PRACTICE NEED NOT BE FOLLOWED IF A SUBSTANTIAL AREA PRACTICE TO THE CONTRARY CAN BE SHOWN. SEE 51 COMP.GEN. 41 (1971). HOWEVER, THERE IS NO EVIDENCE OF RECORD TO INDICATE THAT THERE WAS A SUBSTANTIAL AREA PRACTICE TO USE LABORERS TO TEAR OFF OLD ROOFING. THE ONLY JUSTIFICATION GIVEN FOR THE USE OF LABORERS TO DO SUCH WORK WAS THAT THE CONTRACTOR WAS NOT A LOCAL FIRM, I.E., SINCE IT WAS A VIRGINIA FIRM IT SHOULD NOT HAVE TO FOLLOW A CALIFORNIA PREVAILING AREA PRACTICE. HOWEVER, ONE OF THE PRIMARY REASONS FOR ENACTMENT OF THAT PROVISION OF THE DAVIS-BACON ACT, 40 U.S.C. SEC. 276AA) (1976), WHICH REQUIRES THAT CONTRACTORS AND SUBCONTRACTORS PAY THE LOCAL PREVAILING WAGE RATE, WAS TO PREVENT THE DEPRESSION OF LOCAL WAGE RATES BY FIRMS WHO IMPORTED LOWER PAID WORKERS FROM OTHER LOCALITIES. SINCE LOCAL WAGE RATES ARE DETERMINED, TO A LARGE EXTENT, BY LOCAL AREA PRACTICES, TO ALLOW THE CONTRACTOR TO USE LABORERS TO TEAR OFF OLD ROOFING (WHICH WE ASSUME WAS THE LOCAL AREA PRACTICE IN VIRGINIA) WOULD BE IN CONTRAVENTION OF THE LEGISLATIVE INTENT OF THE DAVIS-BACON ACT. ACCORDINGLY, THE FUNDS ON DEPOSIT WITH YOUR OFFICE SHOULD BE DISBURSED TO THE AGGRIEVED EMPLOYEES IN ACCORDANCE WITH ESTABLISHED PROCEDURES.

WE AGREE WITH THE DEPARTMENT OF LABOR'S RECOMMENDATION THAT DEBARMENT SANCTIONS NOT BE IMPOSED SINCE IT APPEARS THAT THE VIOLATIONS WERE THE RESULT OF A CLASSIFICATION DISPUTE OR, AT THE VERY LEAST, A MISUNDERSTANDING AS TO THE WORK TO BE PERFORMED BY LABORERS AND ROOFERS, RATHER THAN A WILLFUL INTENT TO UNDERPAY WORKERS. SEE B-195748-O.M., NOVEMBER 17, 1979.