B-202848.OM, AUG 10, 1981

B-202848.OM: Aug 10, 1981

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EVIDENCE OF RECORD IS INSUFFICIENT TO ESTABLISH THAT SUBCONTRACTOR'S CONDUCT WAS OF SUCH NATURE AS TO WARRANT DEBARMENT. 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. SINCE THERE ARE NO FUNDS ON DEPOSIT FOR DISTRIBUTION TO THE AGGRIEVED WORKERS. THE MATTER OF WHETHER THE CONTRACTOR'S NAME SHOULD BE PLACED ON THE DEBARRED BIDDERS LIST FOR VIOLATIONS UNDER THE DAVIS BACON ACT IS FORWARDED FOR YOUR CONSIDERATION AND INSTRUCTIONS. THERE IS VERY LITTLE EVIDENCE OF RECORD TO SUPPORT THESE ALLEGATIONS.

B-202848.OM, AUG 10, 1981

HEADNOTES-UNAVAILBLE DIGEST: WHILE DEPARTMENTS OF ARMY AND LABOR ALLEGE THAT SUBCONTRACTOR WILLFULLY UNDERPAID WORKERS AND FALSIFIED PAYROLLS TO CONCEAL UNDERPAYMENTS, EVIDENCE OF RECORD IS INSUFFICIENT TO ESTABLISH THAT SUBCONTRACTOR'S CONDUCT WAS OF SUCH NATURE AS TO WARRANT DEBARMENT. ALSO, EVIDENCE FAILS TO INDICATE THAT CONTRACTOR WILLFULLY PARTICIPATED IN OR CONTRIBUTED TO UNDERPAYMENTS SO AS TO WARRANT DEBARMENT.

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 M. C. ENTERPRISES, TACOMA, WASHINGTON, WHICH PERFORMED WORK UNDER DEPARTMENT OF THE ARMY CONTRACT NO. DAKF57-78-C-0197 AT CAMP BONNEVILLE, WASHINGTON.

DETAILS OF THE VIOLATIONS AND ADMINISTRATIVE RECOMMENDATIONS CONCERNING DEBARMENT ARE CONTAINED IN THE ATTACHED INVESTIGATIVE REPORT AND DEPARTMENT OF LABOR TRANSMITTAL LETTER.

SINCE THERE ARE NO FUNDS ON DEPOSIT FOR DISTRIBUTION TO THE AGGRIEVED WORKERS, THE MATTER OF WHETHER THE CONTRACTOR'S NAME SHOULD BE PLACED ON THE DEBARRED BIDDERS LIST FOR VIOLATIONS UNDER THE DAVIS BACON ACT IS FORWARDED FOR YOUR CONSIDERATION AND INSTRUCTIONS.

FOR FURTHER INFORMATION, PLEASE CONTACT MYRON COLBREUNER ON EXTENSION 53218.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD-CLAIMS GROUP

RETURNED. WHILE BOTH THE DEPARTMENT OF LABOR AND THE DEPARTMENT OF ARMY ALLEGE THAT THE SUBCONTRACTOR, M. C. ENTERPRISES, WILLFULLY UNDERPAID ITS WORKERS AND FALSIFIED THE CERTIFIED PAYROLLS TO CONCEAL THESE UNDERPAYMENTS, THERE IS VERY LITTLE EVIDENCE OF RECORD TO SUPPORT THESE ALLEGATIONS. THERE IS ONLY ONE EMPLOYEE STATEMENT WHICH INDICATES THAT THE EMPLOYEE WORKED AS A CARPENTER FROM NOVEMBER 1978 TO DECEMBER 1978 AND WAS PAID $3.50 TO $3.75 PER HOUR, WHICH IS CONSIDERABLY LESS THAN THE PREVAILING WAGE RATE REQUIRED BY THE DAVIS BACON ACT. HOWEVER, WE HAVE ONLY ONE CERTIFIED PAYROLL FOR THE PERIOD IN QUESTION COVERING THE WEEK OF NOVEMBER 6 THROUGH NOVEMBER 11, 1978, AND THE EMPLOYEE IS NOT LISTED ON THAT PAYROLL. THERE ARE NO (1) ADDITIONAL EMPLOYEE STATEMENTS, (2) CANCELED CHECKS OR CHECK STUBS, (3) COMPANY RECORDS, (4) INSPECTION REPORTS, OR (5) ANY OTHER ORIGINAL DOCUMENTS THAT WOULD ESTABLISH THAT THE WORKERS WERE NOT PAID THE AMOUNTS INDICATED ON THE CERTIFIED PAYROLLS. THUS, WE ARE UNABLE TO CONCLUDE THAT THE SUBCONTRACTOR FALSIFIED THE PAYROLLS OR WILLFULLY UNDERPAID THE WORKERS IN QUESTION. SEE B-193558- O.M., MARCH 6, 1979, AND B-193640-O.M., MARCH 30, 1979. THE COMPLIANCE OFFICER STATES THAT PAM COSIO ADMITTED THAT SHE FALSIFIED THE CERTIFIED PAYROLLS AND SHE EXPLAINED HOW IT WAS ACCOMPLISHED. HOWEVER, THERE IS NO EVIDENCE CORROBORATING THIS STATEMENT.

IN REGARD TO THE CONTRACTOR, AL'S MOBILE WASH, THERE IS NO EVIDENCE OF RECORD TO INDICATE THAT THE CONTRACTOR WILLFULLY PARTICIPATED IN OR CONTRIBUTED TO THE UNDERPAYMENT OF THE EMPLOYEES WITHIN THE INTENT OF THE DAVIS-BACON ACT SO AS TO PROVIDE GROUNDS FOR THE IMPOSITION OF DEBARMENT SANCTIONS AGAINST THE CONTRACTOR. SEE B-192683-O.M., OCTOBER 13, 1978.

FOR THE ABOVE REASONS, WE ARE OF THE VIEW THAT NEITHER PARTY SHOULD BE DEBARRED.