B-211075, JUL 7, 1983

B-211075, JUL 7, 1983

PRECIS-UNAVAILABLE

THE COMPTROLLER GENERAL:

WE ARE FORWARDING THE FILE PERTAINING TO THE POSSIBLE VIOLATIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, BY JOHN HOLTMAN & SONS, A LOWER TIER SUBCONTRACTOR TO ANDREWS & PARRISH COMPANY, PRIME CONTRACTOR, WHICH PERFORMED WORK UNDER U.S. ARMY CORPS OF ENGINEERS CONTRACT NO. DACA65-80-C -0067 AT FORT LEE, VIRGINIA.

THE CORPS OF ENGINEERS DETERMINED THAT JOHN HOLTMAN & SONS HAD MISCLASSIFIED IT'S EMPLOYEES WHO WERE INSTALLING INSULATION AND SIDING. AS A RESULT $16,664.54 WAS FORWARDED TO THIS OFFICE FOR DISBURSEMENT TO THE UNDERPAID EMPLOYEES. THE DEPARTMENT OF LABOR HAS RECENTLY APPROVED THE REQUEST OF ANDREWS & PARRISH COMPANY TO ADD THE CLASSIFICATIONS OF SIDEWALL VINYL SIDING INSTALLER AND SIDEWALL INSULATION INSTALLER TO THE WAGE DECISION. IT APPEARS THAT THE AMOUNT WITHHELD FROM THE PRIME CONTRACTOR IS PROPER FOR REFUND. HOWEVER, THE MATTER IS SUBMITTED FOR REVIEW BEFORE THE AMOUNT ON DEPOSIT IS REFUNDED.

FOR FURTHER INFORMATION, PLEASE CONTACT MS. PAT BUNDY ON EXTENSION 53218.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD-CLAIMS GROUP

RETURNED. GAO IS PRECLUDED FROM REVIEWING THE DECISION BY THE DEPARTMENT OF LABOR (DOL) TO APPROVE, FOR ADDITION TO THE WAGE DETERMINATION, THE CLASSIFICATIONS OF SIDEWALL VINYL SIDING INSTALLER AND SIDEWALL INSULATION INSTALLER, WITH THEIR LOWER WAGE RATES. SEE UNIVERSITY MECHANICAL & ENGINEERING CONTRACTORS, INC., B-190004, SEPTEMBER 28, 1977, 77-2 CPD 238, AND CASES CITED THEREIN. HOWEVER, WE NOTE THAT DOL BY APPROVING THESE CLASSIFICATIONS, HAS, IN ESSENCE, DECIDED THAT THE EMPLOYEES IN QUESTION, WHO WERE ENGAGED IN INSTALLING INSULATION AND SIDING, WERE NOT MISCLASSIFIED SINCE THEY WERE NOT, AS CONTENDED BY THE CORPS OF ENGINEERS, PERFORMING CARPENTER'S WORK. THEREFORE, PURSUANT TO DOL'S REQUEST, THE $16,664.54 WITHHELD FROM THE AMOUNTS DUE THE CONTRACTOR UNDER THE CONTRACT AND PRESENTLY ON DEPOSIT WITH YOUR OFFICE SHOULD BE RETURNED TO THE CONTRACTOR.

CONCERNING THE QUESTION OF DEBARMENT, WE CONCUR WITH THE VIEWS OF THE DEPARTMENTS OF LABOR AND ARMY THAT DEBARMENT SANCTIONS NOT BE IMPOSED AGAINST ANY OF THE PARTIES SINCE NOT ONLY DID DOL ULTIMATELY DECIDE THAT THERE WERE NO MISCLASSIFICATIONS, BUT ALL OF THE ALLEGED VIOLATIONS WERE THE RESULT OF A BONA FIDE DISAGREEMENT AS TO THE PROPER CLASSIFICATION OF THE WORKERS INVOLVED RATHER THAN A WILLFUL INTENT TO UNDERPAY THE WORKERS. SEE B-195306, OCTOBER 4, 1979.