B-206032.OM, JUN 11, 1982

B-206032.OM: Jun 11, 1982

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DIGEST: DEBARMENT IS NOT WARRANTED WHERE WAGE UNDERPAYMENTS WERE RESULT OF CONTRACTOR'S FOREMAN MISCLASSIFYING EMPLOYEES. CONTRACTOR MADE PROMPT RESTITUTION WHEN UNDERPAYMENTS WERE BROUGHT TO ITS ATTENTION. THE UNDERPAYMENTS IN THIS CASE WERE. THERE IS NO EVIDENCE THAT THE CONTRACTOR DIRECTED THE MISCLASSIFICATIONS OR CONSENTED TO THEM. THE CONTRACTOR'S PRESIDENT MADE PROMPT RESTITUTION WHEN UNDERPAYMENTS WERE BROUGHT TO HIS ATTENTION. DEBARMENT IS NOT WARRANTED WHERE UNDERPAYMENTS ARE DUE TO ACTIONS OF EMPLOYEES OF THE CONTRACTOR AND NOT TO OFFICIALS OF THE CONTRACTOR. ATTACHMENT THE COMPTROLLER GENERAL WE ARE FORWARDING THE FILE PERTAINING TO THE APPARENT VIOLATIONS OF THE DAVIS-BACON ACT.

B-206032.OM, JUN 11, 1982

DIGEST: DEBARMENT IS NOT WARRANTED WHERE WAGE UNDERPAYMENTS WERE RESULT OF CONTRACTOR'S FOREMAN MISCLASSIFYING EMPLOYEES, WITHOUT DIRECTION OR CONSENT OF CONTRACTOR, AND CONTRACTOR MADE PROMPT RESTITUTION WHEN UNDERPAYMENTS WERE BROUGHT TO ITS ATTENTION.

ASSOCIATE DIRECTOR, AFMD-CLAIMS GROUP:

INDORSEMENT

RETURNED. THE UNDERPAYMENTS IN THIS CASE WERE, FOR THE MOST PART, THE RESULT OF THE CONTRACTOR'S FOREMAN MISCLASSIFYING EMPLOYEES. THERE IS NO EVIDENCE THAT THE CONTRACTOR DIRECTED THE MISCLASSIFICATIONS OR CONSENTED TO THEM. WITH ONE EXCEPTION, THE CONTRACTOR'S PRESIDENT MADE PROMPT RESTITUTION WHEN UNDERPAYMENTS WERE BROUGHT TO HIS ATTENTION. THE ONE TIME THAT HE DID NOT MAKE PROMPT RESTITUTION HE DISAGREED AS TO THE AMOUNT OF THE UNDERPAYMENTS AND APPEALED TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS. THE BOARD ISSUED A DECISION REDUCING THE UNDERPAYMENTS FOUND TO BE DUE FROM $1,974.10 TO $1,021, WHICH THE CONTRACTOR PAID IMMEDIATELY.

DEBARMENT IS NOT WARRANTED WHERE UNDERPAYMENTS ARE DUE TO ACTIONS OF EMPLOYEES OF THE CONTRACTOR AND NOT TO OFFICIALS OF THE CONTRACTOR. B-200977-O.M., DECEMBER 30, 1980; B-193461-O.M., DECEMBER 13, 1978; B-184814-O.M., OCTOBER 2, 1975; B-184043-O.M., JULY 2, 1974. IN THE CIRCUMSTANCES, WE AGREE WITH THE DEPARTMENT OF LABOR THAT DEBARMENT SHOULD NOT BE IMPOSED IN THIS CASE.

ATTACHMENT

THE COMPTROLLER GENERAL

WE ARE FORWARDING THE FILE PERTAINING TO THE APPARENT VIOLATIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, BY EAST COAST ENGINEERING, INC., MARTINEZ, GEORGIA, WHICH PERFORMED WORK UNDER ARMY CORPS OF ENGINEERS CONTRACT NO. DACA21-77-C-0160 AT FORT STEWART, GEORGIA.

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.