B-199712.OM, APR 20, 1981

B-199712.OM: Apr 20, 1981

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PRECIS-UNAVAILABLE COMPTROLLER GENERAL: HERE IS THE FILE PERTAINING TO THE APPARENT VIOLATIONS OF THE DAVIS BACON ACT. DETAILS OF THE VIOLATIONS AND ADMINISTRATIVE RECOMMENDATIONS CONCERNING DEBARMENT ARE CONTAINED IN THE ATTACHED INVESTIGATIVE REPORT AND DEPARTMENT OF LABOR TRANSMITTAL LETTER. 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. HAWKINS WORKED MORE THAN 40 HOURS AS A BACKHOE OPERATOR IS HIS UNCORROBORATED STATEMENT. HAWKINS WAS PAID AS A LABORER FOR THESE 40 HOURS. WARDEN TRAVIS WORKED AS A BACKHOE OPERATOR IS UNCONVINCING. SINCE IT IS CORROBORATED THAT MR.

B-199712.OM, APR 20, 1981

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

HERE IS THE FILE PERTAINING TO THE APPARENT VIOLATIONS OF THE DAVIS BACON ACT, 40 U.S.C. 276A, AND THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT, 40 U.S.C. 327 ET SEQ., BY M. SCHER & SONS, INC. WHICH PERFORMED WORK UNDER THE VETERANS ADMINISTRATION, CONTRACT NO. V514C 212 AT VETERANS ADMINISTRATION CENTER, BATH, NEW YORK.

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 $1,250.84 ON DEPOSIT HERE TO THE 2 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-AFMD, CLAIMS GROUP

RETURNED. AS TO THE MATTER OF DAVIS-BACON ADJUSTMENTS, THE ONLY EVIDENCE CONTAINED IN OUR RECORD THAT MR. ROGER A. HAWKINS WORKED MORE THAN 40 HOURS AS A BACKHOE OPERATOR IS HIS UNCORROBORATED STATEMENT. MR. MARTIN SCHER, PRESIDENT OF THE CONTRACTOR, ADMITS THAT MR. HAWKINS WORKED A TOTAL OF 40 HOURS AS A BACKHOE OPERATOR, BUT NO MORE. THE RECORD INDICATES THAT MR. HAWKINS WAS PAID AS A LABORER FOR THESE 40 HOURS. ALSO, THE EVIDENCE OF RECORD THAT MR. WARDEN TRAVIS WORKED AS A BACKHOE OPERATOR IS UNCONVINCING. SINCE IT IS CORROBORATED THAT MR. HAWKINS WORKED 40 HOURS AS A BACKHOE OPERATOR FOR WHICH HE WAS PAID THE LABORER'S RATE, HIS WAGES SHOULD BE ADJUSTED FOR 40 HOURS. MR. TRAVIS' WAGES SHOULD NOT BE ADJUSTED.

AS TO THE MATTER OF CONTRACT WORK HOURS AND SAFETY STANDARDS ACT ADJUSTMENTS, BOTH MESSRS. HAWKINS AND TRAVIS SHOULD BE PAID THE AMOUNTS ADMINISTRATIVELY DETERMINED TO BE DUE, SINCE THE ACT DIRECTS OUR OFFICE TO PAY THE AMOUNTS ADMINISTRATIVELY FOUND DUE.

THE FUNDS REMAINING AFTER THE FOREGOING ADJUSTMENTS SHOULD BE PAID TO THE CONTRACTOR.

WE DO NOT BELIEVE THAT DEBARMENT UNDER THE DAVIS-BACON ACT IS WARRANTED SINCE IT HAS BEEN ALMOST 4 YEARS SINCE THE VIOLATIONS OCCURRED AND, IF WE WERE TO INITIATE DEBARMENT PROCEEDINGS AT THIS TIME, THE CONTRACTOR WOULD HAVE TO BE ACCORDED DUE PROCESS WHICH WOULD ENTAIL NOTICE AND HEARINGS, WHICH WOULD FURTHER DELAY THE MATTER. SEE B-200299-O.M., OCTOBER 7, 1980 AND B-192682-O.M., OCTOBER 17, 1978. NEITHER THE VETERANS ADMINISTRATION NOR THE DEPARTMENT OF LABOR RECOMMENDS DEBARMENT.

DIGEST

1. EMPLOYEE WHOSE CLAIM IS CORROBORATED BY CONTRACTOR SHOULD HAVE WAGES ADJUSTED TO EXTENT OF CORROBORATION. TO EXTENT THAT THERE IS NO CORROBORATION, ENTITLEMENT TO ADJUSTMENT IS NOT ESTABLISHED.

2. EMPLOYEES SHOULD BE PAID AMOUNTS ADMINISTRATIVELY DETERMINED TO BE DUE UNDER CONTRACT WORK HOURS AND SAFETY STANDARDS ACT, SINCE ACT DIRECTS GAO TO PAY AMOUNTS ADMINISTRATIVELY FOUND DUE.

3. DEBARMENT OF CONTRACTOR IS NOT WARRANTED SINCE IT IS ALMOST 4 YEARS SINCE THE VIOLATION OCCURRED AND, IF GAO WERE TO INITIATE DEBARMENT PROCEEDINGS, THE CONTRACTOR WOULD HAVE TO BE ACCORDED DUE PROCESS WHICH WOULD ENTAIL NOTICE AND HEARINGS WHICH WOULD FURTHER DELAY MATTER.