B-201509.OM, MAY 5, 1981

B-201509.OM: May 5, 1981

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PRECIS-UNAVAILABLE THE COMPTROLLER GENERAL: WE ARE FORWARDING 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 CONSIDERATIONS AND INSTRUCTIONS. THERE IS SUFFICIENT EVIDENCE OF RECORD TO ESTABLISH THAT THE SUBCONTRACTOR. AN EMPLOYER MAY DISCHARGE HIS FRINGE BENEFIT OBLIGATIONS BY EITHER PAYING INTO A FRINGE BENEFIT FUND OR MAKING CASH PAYMENTS DIRECTLY TO THE EMPLOYEE AND WE HAVE HELD THAT UNDER THE ACT NOT ONLY IS THE COMPTROLLER GENERAL AUTHORIZED TO PAY DIRECTLY TO THE EMPLOYEES BUT HE IS ALSO AUTHORIZED TO PAY DIRECTLY INTO THE FRINGE BENEFIT FUNDS.

B-201509.OM, MAY 5, 1981

PRECIS-UNAVAILABLE

THE COMPTROLLER GENERAL:

WE ARE FORWARDING 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 BRIMAR CONSTRUCTION CO., INC., SUBCONTRACTOR TO TITAN GROUP, INC. WHICH PERFORMED WORK UNDER CORPS OF ENGINEERS CONTRACT NO. DACA63-75-C-0236 AT SHEPPARD AFB, TEXAS.

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 TO THE 27 UNDERPAID EMPLOYEES THE $1,002.53 ON DEPOSIT. 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 CONSIDERATIONS AND INSTRUCTIONS.

FOR FURTHER INFORMATION, PLEASE CONTACT MR. KEN SCHUTT ON EXTENSION 53218.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD-CLAIMS GROUP

RETURNED. THERE IS SUFFICIENT EVIDENCE OF RECORD TO ESTABLISH THAT THE SUBCONTRACTOR, BRIMER CONSTRUCTION CO., INC. (BRIMER), DID NOT PAY FRINGE BENEFITS FOR THE EMPLOYEES IN QUESTION. UNDER SECTION 1(B) OF THE DAVIS- BACON ACT, 40 U.S.C. SEC. 276A (1976), AS AMENDED BY THE ACT OF JULY 2, 1964, PUB.L. 88-349, 78 STAT. 238, AN EMPLOYER MAY DISCHARGE HIS FRINGE BENEFIT OBLIGATIONS BY EITHER PAYING INTO A FRINGE BENEFIT FUND OR MAKING CASH PAYMENTS DIRECTLY TO THE EMPLOYEE AND WE HAVE HELD THAT UNDER THE ACT NOT ONLY IS THE COMPTROLLER GENERAL AUTHORIZED TO PAY DIRECTLY TO THE EMPLOYEES BUT HE IS ALSO AUTHORIZED TO PAY DIRECTLY INTO THE FRINGE BENEFIT FUNDS. SEE B-200447-O.M., OCTOBER 17, 1980, AND B-193615-O.M., MAY 7, 1979. IN THE PRESENT CASE, SINCE THERE HAVE BEEN NO CLAIMS BY TRUSTEES OF ANY FRINGE BENEFIT FUNDS OR, FOR THAT MATTER, ANY EVIDENCE THAT ANY OF THE WORKERS IN QUESTION WERE UNION MEMBERS WHO WOULD CONTRIBUTE TO SUCH FUNDS, WE ARE OF THE VIEW THAT IT WOULD BE PROPER TO DISBURSE THE FUNDS DIRECTLY TO THE EMPLOYEES. SEE B-196684-O.M., MARCH 17, 1980. THEREFORE, THE FUNDS ON DEPOSIT WITH YOUR OFFICE MAY BE DISBURSED TO THE AGGRIEVED EMPLOYEES IN ACCORDANCE WITH ESTABLISHED PROCEDURES.

WE DO NOT BELIEVE THAT DEBARMENT OF THE SUBCONTRACTOR IS WARRANTED SINCE IT HAS BEEN APPROXIMATELY 5 YEARS SINCE THE VIOLATIONS OCCURRED, AND IF WE WERE TO INITIATE DEBARMENT PROCEEDINGS AT THIS TIME, THE SUBCONTRACTOR WOULD HAVE TO BE ACCORDED DUE PROCESS. DUE PROCESS IN THIS CASE WOULD ENTAIL, AT THE MINIMUM, NOTICE AND SOME TYPE OF HEARING WHICH WOULD FURTHER DELAY PAYMENT OF THE WORKERS. SEE B-200299-O.M., OCTOBER 7, 1980, AND B-192682-O.M., OCTOBER 17, 1978.

ALTHOUGH TITAN MIDWEST CONSTRUCTION CORP., THE PRIME CONTRACTOR, IS FINANCIALLY RESPONSIBLE FOR UNDERPAYMENTS TO EMPLOYEES OF ITS SUBCONTRACTOR, THE EVIDENCE OF RECORD DOES NOT INDICATE THAT THE 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 THE PRIME CONTRACTOR. SEE B-193621-O.M., MARCH 7, 1979.

ATTACHMENT

DIGEST

1. WHERE SUBCONTRACTOR FAILED TO PAY FRINGE BENEFITS, COMPTROLLER GENERAL IS AUTHORIZED TO DISBURSE MONEY TO EMPLOYEES OR TO FRINGE BENEFIT FUNDS. SINCE THERE HAVE BEEN NO CLAIMS BY TRUSTEES OF ANY FUNDS AND THERE IS NO EVIDENCE THAT ANY WORKERS WERE UNION MEMBERS WHO WOULD CONTRIBUTE TO FUNDS, IT IS PROPER TO DISBURSE FUNDS TO UNDERPAID EMPLOYEES.

2. DEBARMENT OF SUBCONTRACTOR IS NOT WARRANTED DUE TO THE FACT THAT IT HAS BEEN APPROXIMATELY 5 YEARS SINCE VIOLATIONS OCCURRED AND SHOULD DEBARMENT PROCEEDINGS BE INITIATED AT THIS TIME THERE WOULD BE FURTHER DELAY IN PAYMENT OF WORKERS, SINCE SUBCONTRACTOR WOULD HAVE TO BE ACCORDED DUE PROCESS WHICH WOULD ENTAIL NOTICE AND SOME SORT OF HEARINGS. DEBARMENT OF PRIME CONTRACTOR IS NOT WARRANTED SINCE THERE IS NO EVIDENCE TO INDICATE THAT PRIME CONTRACTOR PARTICIPATED IN OR CONTRIBUTED TO UNDERPAYMENT OF SUBCONTRACTOR'S EMPLOYEES SO AS TO WARRANT DEBARMENT.