B-208814-OM, DEC 16, 1982

B-208814-OM, DEC 16, 1982

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, BY H&J MECHANICAL CONTRACTORS, INC., AS SUBCONTRACTOR TO W.B.VENABLES & SONS, INC., WHICH PERFORMED WORK UNDER NATIONAL AERONAUTICS AND SPACE ADMINISTRATION CONTRACT NO. NAS6-3093 AT WALLOPS FLIGHT CENTER, WALLOPS ISLAND, VIRGINIA.

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

$9,667.85 WAS WITHHELD FROM AMOUNTS OTHERWISE ACCRUING TO THE PRIME CONTRACTOR AND WAS FORWARDED TO THIS OFFICE FOR DISTRIBUTION TO THOSE EMPLOYEES OF THE SUBCONTRACTOR WHO WERE ALLEGEDLY UNDERPAID. HOWEVER, THE EVIDENCE OF RECORD APPEARS TO BE INSUFFICIENT TO SUPPORT THE ALLEGATIONS. ACCORDINGLY, WE RECOMMEND THAT THE MONIES ON DEPOSIT HERE BE REFUNDED TO THE PRIME CONTRACTOR. OUR RECOMMENDATION, 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 MR. LAWRENCE M. BOBIER ON EXTENSION 58145. CONGRESSMAN ROY DYSON HAS EXPRESSED AN INTEREST IN THIS CASE.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD-CLAIMS GROUP

RETURNED. THE VIOLATIONS WERE THE RESULT OF H&J MECHANICAL CONTRACTORS, INC. (H&J), A SUBCONTRACTOR ON THREE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) CONTRACTS, PAYING SEVERAL OF ITS EMPLOYEES THE LABORER'S WAGE RATE WHEN THEY SHOULD HAVE BEEN PAID THE PLUMBER'S WAGE RATE.

NASA CLAIMS THAT FIVE EMPLOYEES WERE UNDERPAID AND HAS FURNISHED COMPUTATIONS OF WHAT IS OWED EACH EMPLOYEE. HOWEVER, THE ONLY EVIDENCE SUPPORTING THESE COMPUTATIONS ARE TWO EMPLOYEE STATEMENTS, ONE OF WHICH WAS NOT PREPARED OR SIGNED BY THE EMPLOYEE IN QUESTION. MOREOVER, THERE IS NO EVIDENCE CORROBORATING NASA'S COMPUTATIONS CONCERNING THE NUMBER OF HOURS WORKED BY THE EMPLOYEES IN THE PLUMBER CLASSIFICATION. HOWEVER, WE HAVE DECIDED TO ACCEPT THESE COMPUTATIONS BECAUSE (1) NO REBUTTAL EVIDENCE WAS OFFERED AND (2) MR. SCOTT JONES, OWNER OF H&J, STATED THAT HE USED SEVERAL EMPLOYEES AS HELPERS AND SINCE THERE WAS NO HELPER CLASSIFICATIONS IN THE WAGE DETERMINATION AND NONE OF THE EMPLOYEES WERE REGISTERED IN AN APPROVED APPRENTICESHIP PROGRAM, THESE EMPLOYEES WOULD, ACCORDING TO GEVYN CONSTRUCTION CORPORATION V. UNITED STATES, CT.CL. NO. 515-78, BE ENTITLED TO BE PAID THE JOURNEYMAN WAGE RATE. WE ARE OF THE VIEW THAT THIS, COUPLED WITH THE TWO EMPLOYEE STATEMENTS, IS SUFFICIENT TO SUPPORT THE CONCLUSION THAT THE WORKERS WERE UNDERPAID THE AMOUNT DETERMINED BY NASA.

CONCERNING THE QUESTION OF WHETHER THE SUBCONTRACTOR SHOULD BE DEBARRED, WE DO NOT BELIEVE THAT THE EVIDENCE OF RECORD IS SUFFICIENT TO SUPPORT THE CONCLUSION THAT THE UNDERPAYMENTS WERE OF SUCH A WILLFUL NATURE AS TO WARRANT DEBARMENT OF THE SUBCONTRACTOR. FROM WHAT WE CAN DETERMINE FROM THE RECORD, THE PAYROLLS WERE NOT FALSIFIED. THE MOST THAT WE CAN ESTABLISH FROM THE RECORD IS THE SUBCONTRACTOR WAS NEGLIGENT IN ALLOCATING THE NUMBER OF HOURS WORKED BY ITS EMPLOYEES IN THE PLUMBER CLASSIFICATION. SEE B-193736-O.M., JUNE 19, 1979, B-193557 O.M., MARCH 14, 1979, AND B-193558-O.M., MARCH 6, 1979. MOREOVER, THE FACT THAT THE SUBCONTRACTOR IS BANKRUPT IS A FACTOR MILITATING AGAINST DEBARMENT. SEE B-184051-O.M., JUNE 24, 1975, AND B-191969-O.M., JUNE 20, 1978.

REGARDING THE THREE PRIME CONTRACTORS ON THE THREE CONTRACTS UNDER WHICH THE EMPLOYEES WERE UNDERPAID, WHILE THEY ARE FINANCIALLY LIABLE FOR UNDERPAYMENTS TO THE EMPLOYEES OF THE SUBCONTRACTOR, THERE IS NO EVIDENCE THAT THE UNDERPAYMENTS RESULTED FROM THE WILLFUL VIOLATIONS OF THE DAVIS- BACON ACT BY ANY OF THE THREE CONTRACTORS. THEREFORE, DEBARMENT OF ANY OF THESE FIRMS WOULD NOT BE WARRANTED. SEE B-189539 O.M., SEPTEMBER 23, 1977. THE DEPARTMENT OF LABOR DOES NOT RECOMMEND DEBARMENT OF ANY OF THE PARTIES.

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