B-202093, MAY 19, 1981

B-202093, MAY 19, 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 LEE ROOFING COMPANY, REDLANDS, CALIFORNIA, WHICH PERFORMED WORK UNDER DEPARTMENT OF THE ARMY CONTRACT NOS. DAKF70-76-C-0074 AND DAKF70-76-C-0107 AT FORT RICHARDSON, ALASKA.

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 $8,159.21 ON DEPOSIT HERE TO THE SEVENTEEN 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 MYRON COLBREUNER ON EXTENSION 53218.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD-CLAIMS GROUP

RETURNED. THE VIOLATIONS OF THE DAVIS-BACON ACT BY THE SUBCONTRACTOR, LEE ROOFING COMPANY, WHICH OCCURRED DURING THE SPRING AND SUMMER OF 1977, WERE, FOR THE MOST PART, CLASSIFICATION VIOLATIONS, I.E., THE USE OF THE CLASSIFICATION "ROOFER HELPER" INSTEAD OF THE "ROOFER" CLASSIFICATION. WHILE THE "ROOFER HELPER" CLASSIFICATION WAS NOT LISTED IN THE WAGE DETERMINATION, THE RECORD INDICATES THAT THERE WERE THREE CLASSFICATIONS PREVAILING IN THE AREA WHERE THE CONTRACT WAS PERFORMED: "JOURNEYMAN ROOFER," "ROOFER HELPER" AND "ROOFER'S APPRENTICE/TRAINEE" AND ALL THREE CLASSIFICATIONS WERE INCLUDED IN THE PRIME CONTRACTOR'S COLLECTIVE BARGAINING AGREEMENT. THE PRIME CONTRACTOR, PACIFIC WEST CONTRACTORS, REQUESTED THAT THE "ROOFER HELPER" CLASSIFICATION BE ADDED TO THE WAGE DETERMINATION AND WHEN THE CONTRACTING OFFICER REFUSED THE REQUEST, THE CONTRACTOR APPEALED TO THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF LABOR AND FINALLY TO THE WAGE APPEALS BOARD. OF COURSE, THE BOARD'S DECISION, WHICH WAS RENDERED AFTER COMPLETION OF THE CONTRACT, AFFIRMING THE WAGE AND HOURS' REFUSAL TO ADD THE CLASSIFICATION TO THE WAGE DETERMINATION, IS FINAL AND NOT SUBJECT TO REVIEW BY OUR OFFICE. B-195132, JULY 6, 1979. ALSO, SEE B-199252-O.M., JULY 22, 1980. WHILE THE BOARD'S FINAL DETERMINATION ESTABLISHED THE FACT THAT THERE WERE UNDERPAYMENTS, IT IS APPARENT THAT THESE UNDERPAYMENTS WERE THE RESULT OF A BONA FIDE DISAGREEMENT AS TO THE PROPER CLASSIFICATION OF THE WORKERS INVOLVED AND NOT OF SUCH A WILLFUL NATURE AS TO REQUIRE DEBARMENT. SEE B-195306 O.M., OCTOBER 4, 1979; B-195231-O.M., OCTOBER 2, 1979; B-193560-O.M., MARCH 12, 1979. THERE WERE SOME ADDITIONAL MINOR UNDERPAYMENTS WHICH RESULTED FROM POOR OR "SLOPPY" RECORD KEEPING BY THE SUBCONTRACTOR'S PROJECT SUPERVISOR, BUT THERE IS NO EVIDENCE THAT THE SUBCONTRACTOR, OR ANY RESPONSIBLE OFFICIAL OF THE SUBCONTRACTOR, KNEW OF OR ACQUIESCED IN THESE MINOR VIOLATIONS. THEREFORE, WE DO NOT BELIEVE THAT DEBARMENT IS WARRANTED. THE DEPARTMENT OF LABOR DOES NOT RECOMMEND DEBARMENT.

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

DIGEST

1. DEBARMENT IS NOT WARRANTED SINCE UNDERPAYMENT OF WORKERS WAS RESULT OF BONA FIDE DISPUTE AS TO PROPER CLASSIFICATION OF WORKERS, WHICH WAS NOT RESOLVED UNTIL AFTER COMPLETION OF CONTRACT, AND NOT OF WILLFUL NATURE.

2. REFUSAL BY DEPARTMENT OF LABOR TO ADD CLASSIFICATION OF "ROOFER HELPER" TO WAGE DETERMINATION IS FINAL AND NOT SUBJECT TO REVIEW BY GAO.