B-208906-OM, DEC 27, 1982

B-208906-OM: Dec 27, 1982

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PRECIS-UNAVAILABLE 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. OUR PROPOSAL AND THE MATTER OF WHETHER THE CONTRACTORS' NAMES SHOULD BE PLACED ON THE DEBARRED BIDDERS LIST FOR VIOLATIONS UNDER THE DAVIS-BACON ACT ARE FORWARDED FOR YOUR CONSIDERATION AND INSTRUCTIONS. WHILE THE EVIDENCE OF RECORD IS SUFFICIENT TO SUPPORT THE CONCLUSION THAT THE WORKERS IN QUESTION WERE UNDERPAID. OR ANY OF THE SIX SUBCONTRACTORS IS WARRANTED. OF THE 18 EMPLOYEES WHO WERE UNDERPAID.

B-208906-OM, DEC 27, 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, AND THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT, 40 U.S.C. 327 ET SEQ., BY BLATZ CONSTRUCTION COMPANY, INC., AIRPORT MARKINGS, ARTCRAFT DECORATING AND CONTRACTING COMPANY, DIAMOND STEEL ERECTORS, INC., HALLMARK IRON WORKS, INC., S. P. JONES, AND PROGRESSIVE BUILDERS, WHICH PERFORMED WORK UNDER ARMY CORPS OF ENGINEERS CONTRACT NO. DACA31-75-C-0124 AT FORT BELVOIR, VIRGINIA.

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 $2,396.21 ON DEPOSIT HERE TO THE EIGHTEEN AGGRIEVED WORKERS IN ACCORDANCE WITH ESTABLISHED PROCEDURES, AND RETURN THE BALANCE TO THE SURETY. OUR PROPOSAL AND THE MATTER OF WHETHER THE CONTRACTORS' NAMES 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. WHILE THE EVIDENCE OF RECORD IS SUFFICIENT TO SUPPORT THE CONCLUSION THAT THE WORKERS IN QUESTION WERE UNDERPAID, WE DO NOT BELIEVE THAT UNDER THE CIRCUMSTANCES OF THE PRESENT CASE DEBARMENT OF EITHER THE PRIME CONTRACTOR, BLATZ CONSTRUCTION COMPANY, INC. (BLATZ), OR ANY OF THE SIX SUBCONTRACTORS IS WARRANTED. OF THE 18 EMPLOYEES WHO WERE UNDERPAID, THREE WERE EMPLOYED BY BLATZ. THESE EMPLOYEES WERE CLASSIFIED AND PAID AS LABORERS WHEN, IN FACT, TWO EMPLOYEES WORKED AS CEMENT MASONS AND THE THIRD EMPLOYEE WORKED AS AN AIR TOOL OPERATOR. THE TWO EMPLOYEES WHO WORKED AS CEMENT MASONS WERE UNDERPAID $1,122.62 AND $1,119.18, RESPECTIVELY, WHILE THE THIRD EMPLOYEE WAS UNDERPAID $51.07. ON THE BASIS OF THESE UNDERPAYMENTS, AS WELL AS BLATZ'S POOR PERFORMANCE IN CONNECTION WITH OBTAINING PAYROLLS AND OTHER RECORDS FROM ITS SUBCONTRACTORS AND CORRECTING MINOR UNDERPAYMENTS BY THE SUBCONTRACTORS, THE ARMY HAS RECOMMENDED DEBARMENT OF BLATZ.

HOWEVER, OTHER FACTS REVEALED IN THE RECORD ARE MORE CONSISTENT WITH THE VIEW THAT THE UNDERPAYMENTS WERE THE RESULT OF NEGLIGENCE OR OVERSIGHT, RATHER THAN A WILLFUL INTENT TO UNDERPAY WORKERS OF SUCH A NATURE AS TO WARRANT DEBARMENT. FIRST, THE TOTAL OF THESE UNDERPAYMENTS ($2,292.87) IS RELATIVELY MINOR WHEN COMPARED TO THE CONTRACT PRICE ($1,054,000). SECOND, ACTIONS GENERALLY ASSOCIATED WITH A DELIBERATE ATTEMPT TO UNDERPAY WORKERS WERE NOT TAKEN IN THIS CASE. FOR EXAMPLE, THE PAYROLLS WERE NOT FALSIFIED TO CONCEAL THE UNDERPAYMENTS AND THE WAGE DETERMINATION WAS POSTED IN A CONSPICUOUS LOCATION. ALSO, THE FACT THAT BLATZ WAS TERMINATED FOR DEFAULT INDICATES A LACK OF BUSINESS CAPACITY, OR PERHAPS FINANCIAL DIFFICULTIES, EITHER OF WHICH COULD HAVE CAUSED OR CONTRIBUTED TO THE UNDERPAYMENTS. SEE B-188875-O.M., MAY 12, 1977. THEREFORE, ON THE BASIS OF THE RECORD WE DO NOT BELIEVE THAT DEBARMENT OF BLATZ IS WARRANTED. THE DEPARTMENT OF LABOR DID NOT RECOMMEND DEBARMENT OF ANY OF THE PARTIES.

CONCERNING THE UNDERPAYMENTS BY THE SUBCONTRACTORS, THE LARGEST UNDERPAYMENT WAS ONLY $37.18 AND 12 OF THE EMPLOYEES WERE UNDERPAID LESS THAN $5. IT IS OBVIOUS THAT THESE UNDERPAYMENTS WERE INSIGNIFICANT AND WERE THE RESULT OF CLERICAL MISTAKES RATHER THAN A WILLFUL INTENT TO UNDERPAY THE EMPLOYEES. SEE B-185749-O.M., APRIL 8, 1976.

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