B-208913-OM, JAN 6, 1983

B-208913-OM: Jan 6, 1983

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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 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. WAS AWARDED TO BARRIERE CONSTRUCTION CO. THE PROJECT ENGINEER OBSERVED THAT THE SUBCONTRACTOR WAS USING THREE WORKERS TO PERFORM WORK WHICH IS GENERALLY PERFORMED BY PILEDRIVERS. A REVIEW OF THE PAYROLLS COVERING THIS WORK REVEALED THAT ONLY ONE OF THE THREE WORKERS WAS CLASSIFIED AND PAID AS A PILEDRIVER.

B-208913-OM, JAN 6, 1983

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 C.G.SMITH COMPANY, HARVEY, LOUISIANA, WHICH PERFORMED WORK UNDER ARMY CORPS OF ENGINEERS CONTRACT NO. DACW29-77-C-0037 AT INTRACOASTAL PUMPING STATION, LAKE PONTCHARTRAIN, LOUISIANA.

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 $223.27 ON DEPOSIT HERE TO THE THREE AGGRIEVED WORKERS 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 CONSIDERATION AND INSTRUCTIONS.

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

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD-CLAIMS GROUP

RETURNED. ON NOVEMBER 17, 1976, CONTRACT NO. DACW29-77-C-0037 FOR THE CONSTRUCTION OF A FLOODWALL AT THE INTRACOASTAL PUMPING STATION, NEW ORLEANS EAST BACK LEVEE, LAKE PONTCHARTRAIN, LOUISIANA, WAS AWARDED TO BARRIERE CONSTRUCTION CO., INC. (BARRIERE). ON NOVEMBER 23, 1976, BARRIERE AWARDED A SUBCONTRACT TO THE C.G.SMITH COMPANY FOR THE PERFORMANCE OF EXCAVATION, CONCRETE AND PILING WORK.

DURING THE PILE DRIVING OPERATIONS, THE PROJECT ENGINEER OBSERVED THAT THE SUBCONTRACTOR WAS USING THREE WORKERS TO PERFORM WORK WHICH IS GENERALLY PERFORMED BY PILEDRIVERS; HOWEVER, A REVIEW OF THE PAYROLLS COVERING THIS WORK REVEALED THAT ONLY ONE OF THE THREE WORKERS WAS CLASSIFIED AND PAID AS A PILEDRIVER. THE OTHER TWO WORKERS WERE CLASSIFIED AND PAID AS LABORERS. THE CONTRACTING OFFICER ADVISED THE CONTRACTOR, WHO IN TURN ADVISED THE SUBCONTRACTOR, THAT SINCE ALL THREE WORKERS PERFORMED THE SAME WORK, ALL THREE WORKERS WOULD HAVE TO BE CLASSIFIED AND PAID AS PILEDRIVERS. THE SUBCONTRACTOR DISAGREED WITH THE CONTRACTING OFFICER'S DETERMINATION, STATING THAT THE TWO EMPLOYEES WERE PROPERLY PAID AND CLASSIFIED AS LABORERS. IT IS THE SUBCONTRACTOR'S POSITION THAT NO MORE THAN ONE WORKER IN THE CREW IS REQUIRED TO BE CLASSIFIED AND PAID AS A PILEDRIVER.

THE SUBCONTRACTOR, THROUGH THE CONTRACTOR, FILED AN APPEAL WITH THE DEPARTMENT OF LABOR (DOL). DOL AFFIRMED THE CONTRACTING OFFICER'S DETERMINATION, HOLDING THAT IT WAS THE AREA PRACTICE FOR THE WORK IN QUESTION TO BE PERFORMED BY PILEDRIVERS RATHER THAN LABORERS.

WE HAVE HELD THAT WHERE, AS IN THE PRESENT CASE, A CONTRACTOR APPEALS A CLASSIFICATION QUESTION CONCERNING WHAT ACTIVITIES CONSTITUTE THE WORK OF A PARTICULAR CRAFT TO DOL UNDER THE "DISPUTES CONCERNING LABOR STANDARDS" CLAUSE, THE CONTRACTOR IS BOUND BY DOL'S DECISION WHICH IS FINAL AND NOT SUBJECT TO REVIEW BY GAO. SEE IRBY CONSTRUCTION COMPANY, B-195283, SEPTEMBER 21, 1979, 79-2 CPD 213, AND CASES CITED THEREIN. IN LIGHT OF THE ABOVE, COUPLED WITH THE FACT THAT THERE WAS NO DISPUTE CONCERNING THE NUMBER OF HOURS WORKED OR THE AMOUNTS ACTUALLY PAID THE WORKERS, WE CONCLUDE THAT THE WORKERS WERE UNDERPAID IN THE AMOUNT DETERMINED BY THE CONTRACTING OFFICER.

THE $223.27 ON DEPOSIT WITH YOUR OFFICE SHOULD BE DISBURSED TO THE AGGRIEVED EMPLOYEES IN ACCORDANCE WITH ESTABLISHED PROCEDURES.

IN REGARD TO THE QUESTION OF WHETHER DEBARMENT SANCTIONS SHOULD BE IMPOSED, THE RECORD CLEARLY ESTABLISHES THAT THERE WAS A BONA FIDE DISAGREEMENT OR DISPUTE CONCERNING THE CLASSIFICATION OF TWO WORKERS AND THAT THE UNDERPAYMENT OF THESE TWO WORKERS WAS NOT OF SUCH A WILLFUL NATURE AS TO WARRANT DEBARMENT OF EITHER THE CONTRACTOR OR SUBCONTRACTOR. SEE B-198964-O.M., MARCH 15, 1982. ALSO, IN VIEW OF THE SMALL AMOUNT OF UNDERPAYMENTS ($223.27), COUPLED WITH THE LAPSE OF MORE THAN 5 YEARS SINCE THE UNDERPAYMENTS OCCURRED, IT WOULD APPEAR TO US THAT DEBARMENT OF EITHER THE CONTRACTOR OR SUBCONTRACTOR WOULD NOT BE APPROPRIATE. SEE B-194246- O.M., JUNE 11, 1979. DOL DOES NOT RECOMMEND DEBARMENT.