B-200301.OM, B-200302.OM, OCT 17, 1980

B-200301.OM,B-200302.OM: Oct 17, 1980

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THE EVIDENCE IS SUFFICIENT TO SUPPORT THE CONCLUSION THAT THE WORKERS IN QUESTION ON BOTH PROJECTS. WERE UNDERPAID BY THE SECOND-TIER SUBCONTRACTOR. THERE WAS NO SUBCONTRACT ON EITHER PROJECT BETWEEN ROBERT NEAL AND FEDERAL CONSTRUCTION STANDARDS. COME INTO BEING ONLY BY VIRTUE OF CONTRACTUAL PROVISIONS AND ARE NOT DIRECTLY IMPOSED BY OPERATION OF THE STATUTE. 40 COMP.GEN. 565 (1961). IN THE ABSENCE OF EVIDENCE THAT THERE WERE SUBCONTRACTS CONTAINING THE REQUIRED LABOR STANDARDS PROVISIONS. ROBERT NEAL CANNOT BE FOUND TO HAVE WILLFULLY DISREGARDED ITS OBLIGATIONS UNDER THE ACT. ANOTHER FACTOR WHICH WOULD WEIGH HEAVILY IN FAVOR OF OUR OFFICE NOT DEBARRING IS THE FACT THAT IN CONNECTION WITH BOTH PROJECTS IT HAS BEEN IN EXCESS OF 3 YEARS SINCE THE VIOLATIONS OCCURRED.

B-200301.OM, B-200302.OM, OCT 17, 1980

PRECIS-UNAVAILABLE

ASSOCIATE DIRECTOR, FGMS DIVISION-CLAIMS GROUP:

ENDORSEMENT RETURNED.

THE EVIDENCE IS SUFFICIENT TO SUPPORT THE CONCLUSION THAT THE WORKERS IN QUESTION ON BOTH PROJECTS, I.E., DEPARTMENT OF ARMY CONTRACT NO. DACA45-75-C-0271 FOR CONSTRUCTION WORK AT MCCONNELL AIR FORCE BASE, KANSAS, AND DEPARTMENT OF THE NAVY CONTRACT NO. N62477-74-C 0304 FOR CONSTRUCTION WORK AT THE MARINE CORPS BASE, QUANTICO, VIRGINIA, WERE UNDERPAID BY THE SECOND-TIER SUBCONTRACTOR, ROBERT NEAL STEEL ERECTION CO. (ROBERT NEAL).

REGARDING THE QUESTION OF WHETHER ROBERT NEAL SHOULD BE DEBARRED, ACCORDING TO THE RECORD, THERE WAS NO SUBCONTRACT ON EITHER PROJECT BETWEEN ROBERT NEAL AND FEDERAL CONSTRUCTION STANDARDS, INC., THE FIRST TIER SUBCONTRACTOR ON BOTH PROJECTS, WHICH CONTAINED THE REQUIRED LABOR STANDARDS PROVISIONS. OBLIGATIONS UNDER THE DAVIS-BACON ACT, 40 U.S.C. SEC. 276A (1976), COME INTO BEING ONLY BY VIRTUE OF CONTRACTUAL PROVISIONS AND ARE NOT DIRECTLY IMPOSED BY OPERATION OF THE STATUTE. 40 COMP.GEN. 565 (1961). IN THE ABSENCE OF EVIDENCE THAT THERE WERE SUBCONTRACTS CONTAINING THE REQUIRED LABOR STANDARDS PROVISIONS, WE MUST CONCLUDE THAT ROBERT NEAL HAD NO BINDING OBLIGATION TO EMPLOYEES UNDER THE DAVIS-BACON ACT ON EITHER PROJECT. SEE B-188274-O.M., FEBRUARY 24, 1977. THIS BEING THE CASE, ROBERT NEAL CANNOT BE FOUND TO HAVE WILLFULLY DISREGARDED ITS OBLIGATIONS UNDER THE ACT.

ANOTHER FACTOR WHICH WOULD WEIGH HEAVILY IN FAVOR OF OUR OFFICE NOT DEBARRING IS THE FACT THAT IN CONNECTION WITH BOTH PROJECTS IT HAS BEEN IN EXCESS OF 3 YEARS SINCE THE VIOLATIONS OCCURRED. IF WE WERE TO INITIATE DEBARMENT PROCEEDINGS AT THIS TIME, DUE PROCESS WOULD HAVE TO BE ACCORDED ROBERT NEAL. DUE PROCESS IN THIS CASE WOULD ENTAIL, AT THE MINIMUM, NOTICE AND SOME TYPE OF HEARING. THE ADDITIONAL ADMINISTRATIVE PROCEEDINGS WOULD FURTHER DELAY PAYMENT OF THE WORKERS. SEE B-191911- O.M., JULY 7, 1978.

ALTHOUGH BOTH MC COMPANY, THE PRIME CONTRACTOR FOR CONTRACT NO. N62477-74 -C-0304, AND HAHNER, FOREMAN & HARNESS, INC., THE PRIME CONTRACTOR FOR CONTRACT NO. DACA45-75-C-0271, ARE FINANCIALLY RESPONSIBLE FOR UNDERPAYMENTS TO EMPLOYEES OF THEIR RESPECTIVE SUBCONTRACTORS, THE EVIDENCE OF RECORD DOES NOT INDICATE THAT EITHER PRIME CONTRACTOR WILLFULLY PARTICIPATED IN OR CONTRIBUTED TO THE DISREGARD OF OBLIGATIONS TO EMPLOYEES WITHIN THE INTENT OF THE DAVIS BACON ACT SO AS TO PROVIDE GROUNDS FOR THE IMPOSITION OF DEBARMENT SANCTIONS AGAINST EITHER PRIME CONTRACTOR. SEE B-193621-O.M., MARCH 7, 1979. ALSO, FOR THE SAME REASON, WE FIND NO BASIS FOR DEBARRING FEDERAL CONSTRUCTION STANDARDS, INC., THE FIRST-TIER SUBCONTRACTOR ON BOTH OF THE ABOVE-MENTIONED CONTRACTS.

THE FUNDS ON DEPOSIT WITH YOUR OFFICE MAY BE DISBURSED TO THE AGGRIEVED WORKERS IN ACCORDANCE WITH ESTABLISHED PROCEDURES.