B-208914-OM, MAR 24, 1983

B-208914-OM: Mar 24, 1983

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ARE BEING NOTIFIED OF DEBARMENT FOR VIOLATION OF THE DAVIS-BACON ACT. THAT PORTION OF THE FUNDS ON DEPOSIT WITH YOUR OFFICE WHICH WAS DETERMINED TO BE DUE THE AGGRIEVED EMPLOYEES SHOULD BE DISBURSED TO THOSE EMPLOYEES IN ACCORDANCE WITH ESTABLISHED PROCEDURES AND THE BALANCE RETURNED TO THE CONTRACTOR. TO WHICH THE UNITED STATES *** IS A PARTY. REGARDLESS OF ANY CONTRACTUAL RELATIONSHIP WHICH MAY BE ALLEGED TO EXIST BETWEEN THE CONTRACTOR OR SUBCONTRACTOR AND SUCH LABORERS AND MECHANICS ***" SECTION 3(A) OF THE ACT PROVIDES THAT - "*** THE COMPTROLLER GENERAL OF THE UNITED STATES IS FURTHER AUTHORIZED AND IS DIRECTED TO DISTRIBUTE A LIST TO ALL DEPARTMENTS OF THE GOVERNMENT GIVING THE NAMES OF PERSONS OR FIRMS WHOM HE HAS FOUND TO HAVE DISREGARDED THEIR OBLIGATIONS TO EMPLOYEES AND SUBCONTRACTORS.

B-208914-OM, MAR 24, 1983

PRECIS-UNAVAILABLE

ASSOCIATE DIRECTOR, AFMD-CLAIMS GROUP:

RETURNED. J&W CONTRACTING CO., INC., AND DANIEL COLTON, PRESIDENT, AND ROBERT CALDWELL, VICE-PRESIDENT, ARE BEING NOTIFIED OF DEBARMENT FOR VIOLATION OF THE DAVIS-BACON ACT, 40 U.S.C. SEC. 276A (1976), IN ACCORDANCE WITH THE ATTACHED LETTER AND FINDING (COPIES), AND THESE NAMES SHOULD BE INCLUDED ON THE NEXT PUBLISHED LIST OF INELIGIBLES.

THAT PORTION OF THE FUNDS ON DEPOSIT WITH YOUR OFFICE WHICH WAS DETERMINED TO BE DUE THE AGGRIEVED EMPLOYEES SHOULD BE DISBURSED TO THOSE EMPLOYEES IN ACCORDANCE WITH ESTABLISHED PROCEDURES AND THE BALANCE RETURNED TO THE CONTRACTOR.

FINDING

IN THE MATTER OF J&W CONTRACTING CO., INC., AND DANIEL COLTON, PRESIDENT, AND ROBERT CALDWELL, VICE-PRESIDENT OF SAID CORPORATION, 9420 ANNAPOLIS ROAD, LANHAM, MARYLAND 20801.

SECTION 1(A) OF THE DAVIS-BACON ACT OF AUGUST 30, 1935, 49 STAT. 1011, 40 U.S.C. SEC. 276A (1976), PROVIDES IN PART THAT -

"(A) THE ADVERTISED SPECIFICATIONS FOR EVERY CONTRACT IN EXCESS OF $2,000, TO WHICH THE UNITED STATES *** IS A PARTY, FOR CONSTRUCTION, ALTERATION, AND/OR REPAIR, INCLUDING PAINTING AND DECORATING, OF PUBLIC BUILDINGS OR PUBLIC WORKS OF THE UNITED STATES *** AND WHICH REQUIRES OR INVOLVES THE EMPLOYMENT OF MECHANICS AND/OR LABORERS SHALL CONTAIN A PROVISION STATING THE MINIMUM WAGES TO BE PAID VARIOUS CLASSES OF LABORERS AND MECHANICS *** AND EVERY CONTRACT BASED UPON THESE SPECIFICATIONS SHALL CONTAIN A STIPULATION THAT THE CONTRACTOR OR HIS SUBCONTRACTOR SHALL PAY ALL MECHANICS AND LABORERS EMPLOYED DIRECTLY UPON THE SITE OF THE WORK, UNCONDITIONALLY AND NOT LESS OFTEN THAN ONCE A WEEK, AND WITHOUT SUBSEQUENT DEDUCTION OR REBATE ON ANY ACCOUNT, THE FULL AMOUNTS ACCRUED AT TIME OF PAYMENT, COMPUTED AT WAGE RATES NOT LESS THAN THOSE STATED IN THE ADVERTISED SPECIFICATIONS, REGARDLESS OF ANY CONTRACTUAL RELATIONSHIP WHICH MAY BE ALLEGED TO EXIST BETWEEN THE CONTRACTOR OR SUBCONTRACTOR AND SUCH LABORERS AND MECHANICS ***"

SECTION 3(A) OF THE ACT PROVIDES THAT -

"*** THE COMPTROLLER GENERAL OF THE UNITED STATES IS FURTHER AUTHORIZED AND IS DIRECTED TO DISTRIBUTE A LIST TO ALL DEPARTMENTS OF THE GOVERNMENT GIVING THE NAMES OF PERSONS OR FIRMS WHOM HE HAS FOUND TO HAVE DISREGARDED THEIR OBLIGATIONS TO EMPLOYEES AND SUBCONTRACTORS. NO CONTRACT SHALL BE AWARDED TO THE PERSONS OR FIRMS APPEARING ON THIS LIST OR TO ANY FIRM, CORPORATION, PARTNERSHIP, OR ASSOCIATION IN WHICH SUCH PERSONS OR FIRMS HAVE AN INTEREST UNTIL THREE YEARS HAVE ELAPSED FROM THE DATE OF PUBLICATION OF THE LIST CONTAINING THE NAMES OF SUCH PERSONS OR FIRMS."

CONTRACT NO. DACA31-78-C-0117, IN EXCESS OF $2,000, FOR THE CONSTRUCTION OF A 500 NICHE COLUMBARIUM AT ARLINGTON NATIONAL CEMETERY, ARLINGTON, VIRGINIA, WAS AWARDED BY THE DEPARTMENT OF THE ARMY TO MARVACO, INC. THE CONTRACT CONTAINED THE PROVISIONS AND STIPULATIONS REQUIRED BY SECTION 1 OF THE DAVIS-BACON ACT.

A SUBCONTRACT WAS AWARDED TO J&W CONTRACTING CO., INC., FOR THE CONSTRUCTION OF A STORM DRAINAGE SYSTEM. THE PRESIDENT OF THE SUBCONTRACTOR SIGNED AN ACKNOWLEDGMENT THAT THE DAVIS-BACON ACT PROVISIONS OF THE PRIME CONTRACT WERE INCORPORATED INTO THE SUBCONTRACT.

AN INVESTIGATION CONDUCTED BY THE DEPARTMENT OF THE ARMY DISCLOSED THAT THE SUBCONTRACTOR, HAVING FULL KNOWLEDGE OF ITS STATUTORY AND CONTRACTUAL RESPONSIBILITIES, DID NEVERTHELESS DISREGARD THESE OBLIGATIONS AS EVIDENCED BY THE DELIBERATE PAYMENT OF SUBMINIMUM WAGE RATES TO PERSONS EMPLOYED BY IT ON THE SUBJECT PROJECT. AS A RESULT OF THIS INVESTIGATION 12 EMPLOYEES WERE FOUND TO HAVE BEEN UNDERPAID A TOTAL OF $6,903.31 IN VIOLATION OF THE TERMS OF THE DAVIS-BACON ACT. THE RECORD ALSO REVEALED THAT THE CERTIFIED PAYROLLS SUBMITTED TO THE CONTRACTING AGENCY BY THE SUBCONTRACTOR CONTAINED INCORRECT INFORMATION INDICATING THAT EMPLOYEES HAD RECEIVED MORE PAY THAN THEY ACTUALLY RECEIVED.

BY REGISTERED LETTER DATED JANUARY 11, 1983, OUR OFFICE ADVISED THE SUBCONTRACTOR OF THE NATURE AND EXTENT OF THE LABOR STANDARDS VIOLATIONS AND AFFORDED IT AN OPPORTUNITY TO REBUT THE ALLEGATIONS. HOWEVER, THE LETTER WAS RETURNED BY THE POST OFFICE DEPARTMENT AS "MOVED, NOT FORWARDABLE."

ON THE BASIS OF THE EXISTING RECORD, WE CONCLUDE THAT GOOD FAITH WAS NOT SHOWN IN COMPLYING WITH THE ACT AND THE CONTRACTUAL PROVISIONS. THE DEPARTMENT OF THE ARMY HAS RECOMMENDED IMPOSITION OF DEBARMENT. HOWEVER, THE DEPARTMENT OF LABOR DID NOT RECOMMEND DEBARMENT.

WE FIND THAT J&W CONTRACTING CO., INC., DANIEL COLTON AND ROBERT CALDWELL HAVE DISREGARDED THEIR "OBLIGATIONS TO EMPLOYEES" WITHIN THE MEANING OF SECTION 3(A) OF THE DAVIS-BACON ACT. ACCORDINGLY, THESE NAMES WILL BE INCLUDED ON A LIST FOR DISTRIBUTION TO ALL AGENCIES OF THE GOVERNMENT AND, PURSUANT TO STATUTORY REQUIREMENTS, NO CONTRACT SHALL BE AWARDED TO THEM OR TO ANY FIRM, CORPORATION, PARTNERSHIP, OR ASSOCIATION IN WHICH THEY OR ANY OF THEM HAVE AN INTEREST UNTIL 3 YEARS HAVE ELAPSED FROM THE DATE OF PUBLICATION OF SUCH LIST.

ATTACHMENT

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 J&W CONTRACTING CO., INC., LANHAM, MARYLAND, WHICH PERFORMED WORK UNDER ARMY CORPS OF ENGINEERS CONTRACT NO. DACA31-78-C-0117 AT ARLINGTON NATIONAL CEMETERY, ARLINGTON, VIRGINIA.

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

WE NOTE THAT THE CONTRACTING AGENCY FAILED TO COMPUTE BACK WAGES DUE ONE EMPLOYEE FOR 1 WEEK'S WORK. WE HAVE COMPUTED THE UNDERPAYMENT FOR THIS WEEK AND INCREASED THE AMOUNT DUE THIS EMPLOYEE ACCORDINGLY.

WE ALSO FOUND THAT IN SOME INSTANCES, THE AGENCY CREDITED EMPLOYEES WITH OVERTIME FOR ALL SATURDAY WORK, EVEN THOUGH THE EMPLOYEES MAY NOT HAVE ACCUMULATED 40 HOURS OF WORK IN THAT WEEK. OUR RECOMPUTATIONS RESULTED IN A DECREASE IN THE AMOUNTS DUE FOUR EMPLOYEES.

WE PROPOSE, WITH YOUR APPROVAL, TO DISBURSE THE $7,098.73 ON DEPOSIT HERE TO THE 12 AGGRIEVED WORKERS IN ACCORDANCE WITH ESTABLISHED PROCEDURES, AND RETURN THE BALANCE TO THE CONTRACTOR. 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.

ATTACHMENT

ENCLOSED IS A COPY OF OUR FINDING OF TODAY THAT J&W CONTRACTING CO., INC., DANIEL COLTON, PRESIDENT, AND ROBERT CALDWELL, VICE-PRESIDENT, HAVE DISREGARDED OBLIGATIONS TO EMPLOYEES WITHIN THE MEANING OF THE DAVIS-BACON ACT, 40 U.S.C. SEC. 276A (1976), IN THE PERFORMANCE OF A SUBCONTRACT UNDER CONTRACT NO. DACA31-78-C-0117 FOR THE CONSTRUCTION OF A COLUMBARIUM AT ARLINGTON NATIONAL CEMETERY, ARLINGTON, VIRGINIA.

PURSUANT TO THE PROVISIONS OF SECTION 3(A) OF THE ACT, THE NAMES OF THE ABOVE CORPORATION AND INDIVIDUALS SHALL BE INCLUDED ON OUR PUBLISHED DEBARRED BIDDERS LIST, AND NO GOVERNMENT CONTRACT WILL BE AWARDED TO THEM OR TO ANY FIRM, CORPORATION, PARTNERSHIP, OR ASSOCIATION IN WHICH THEY OR ANY OF THEM HAVE AN INTEREST UNTIL 3 YEARS HAVE ELAPSED FROM THE DATE OF PUBLICATION OF THE LIST CONTAINING THEIR NAMES.