B-205945.OM, APR 5, 1982

B-205945.OM: Apr 5, 1982

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DIGEST: WHILE EVIDENCE OF RECORD IS SUFFICIENT TO ESTABLISH THAT WORKERS WERE UNDERPAID. IT WAS NOT SUFFICIENT TO ESTABLISH THAT UNDERPAYMENTS WERE OF SUCH WILLFUL NATURE AS TO WARRANT DEBARMENT. UNDERPAYMENTS WERE RESULT OF CONTRACTOR'S INEXPERIENCE IN PERFORMING CONTRACT COVERED BY DAVIS-BACON ACT AND TIGHT TIME CONSTRAINTS IMPOSED BY CONTRACT. THERE WAS NO PRECONSTRUCTION CONFERENCE AT WHICH CONTRACTOR WOULD HAVE BEEN BRIEFED FULLY CONCERNING LABOR STANDARDS OBLIGATIONS. 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.

B-205945.OM, APR 5, 1982

DIGEST: WHILE EVIDENCE OF RECORD IS SUFFICIENT TO ESTABLISH THAT WORKERS WERE UNDERPAID, IT WAS NOT SUFFICIENT TO ESTABLISH THAT UNDERPAYMENTS WERE OF SUCH WILLFUL NATURE AS TO WARRANT DEBARMENT. UNDERPAYMENTS WERE RESULT OF CONTRACTOR'S INEXPERIENCE IN PERFORMING CONTRACT COVERED BY DAVIS-BACON ACT AND TIGHT TIME CONSTRAINTS IMPOSED BY CONTRACT. BECAUSE OF SHORT PERFORMANCE PERIOD, THERE WAS NO PRECONSTRUCTION CONFERENCE AT WHICH CONTRACTOR WOULD HAVE BEEN BRIEFED FULLY CONCERNING LABOR STANDARDS OBLIGATIONS.

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 PGB PAINTING CORPORATION WHICH PERFORMED WORK UNDER DEPARTMENT OF THE ARMY, U. S. ARMY CORPS OF ENGINEERS CONTRACT NO. DACA51-80-C-0099 AT U. S. ARMED FORCES RECRUITING BOOTH, TIMES SQUARE, NEW YORK, 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 $454.75 ON DEPOSIT HERE TO THE ONE AGGRIEVED WORKER 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 CONSIDERATIONS AND INSTRUCTIONS.

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

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD-CLAIMS GROUP

RETURNED. THE EVIDENCE OF RECORD, COUPLED WITH THE CONTRACTOR'S ACCEPTANCE OF THE AMOUNT DETERMINED TO BE DUE THE WORKERS, CLEARLY ESTABLISHES THAT THE WORKERS IN QUESTION WERE UNDERPAID; HOWEVER, THE EVIDENCE OF RECORD DOES NOT ESTABLISH THAT THE UNDERPAYMENTS WERE OF SUCH A WILLFUL NATURE AS TO WARRANT DEBARMENT. THE UNDERPAYMENTS WERE THE RESULT OF (1) THE CONTRACTOR'S INEXPERIENCE IN PERFORMING CONTRACTS COVERED BY THE DAVIS-BACON ACT AND (2) THE VERY TIGHT TIME CONSTRAINT IMPOSED BY THE CONTRACT. THE PERFORMANCE PERIOD WAS 3 WEEKS. BECAUSE OF THIS SHORT PERIOD, THERE WAS NO PRECONSTRUCTION CONFERENCE AT WHICH THE CONTRACTOR WOULD HAVE BEEN BRIEFED FULLY CONCERNING LABOR STANDARDS OBLIGATIONS. THE CONTRACTOR DID NOT FALSIFY THE PAYROLLS OR ATTEMPT IN ANY OTHER MANNER TO CONCEAL THE UNDERPAYMENTS. MOREOVER, WHEN THE UNDERPAYMENTS WERE BROUGHT TO ITS ATTENTION, THE CONTRACTOR MADE PROMPT RESTITUTION TO THREE OF THE EMPLOYEES. WHEN THE CONTRACTOR WAS UNABLE TO LOCATE THE FOURTH EMPLOYEE, THE CONTRACTOR REQUESTED THAT THE GOVERNMENT USE THE FUNDS RETAINED UNDER THE CONTRACT TO PAY THE EMPLOYEE. ACCORDINGLY, WE CONCUR WITH THE DEPARTMENTS OF LABOR AND ARMY THAT DEBARMENT SANCTIONS SHOULD NOT BE IMPOSED.

THE FUNDS ON DEPOSIT WITH YOUR OFFICE SHOULD BE DISBURSED TO THE ONE AGGRIEVED EMPLOYEE IN ACCORDANCE WITH THE CONTRACTOR'S AGREEMENT.