B-211250, MAY 16, 1983

B-211250: May 16, 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. THE SUBCONTRACTOR AND THE DEPARTMENT OF LABOR ENTERED INTO A SETTLEMENT WHEREIN IT WAS AGREED THAT $2. 841.05 (OF WHICH $568.53 IS DESIGNATED FOR DAVIS-BACON UNDERPAYMENTS) WOULD BE RETAINED FROM THE PRIME CONTRACT FOR DISBURSEMENT TO THE FOUR EMPLOYEES TO SETTLE ALL WAGE CLAIMS.

B-211250, MAY 16, 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 CULLEN CONSTRUCTION CO., PUEBLO, COLORADO, WHICH PERFORMED WORK UNDER ARMY CORPS OF ENGINEERS CONTRACT NO. DACA-79-C-0170 AT FORT CARSON, COLORADO.

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 $2,841.05 ON DEPOSIT HERE TO THE FOUR 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 275 3218.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD-CLAIMS GROUP

RETURNED. ACCORDING TO THE RECORD, THE SUBCONTRACTOR, CULLEN CONSTRUCTION CO., FAILED TO PAY FOUR OF ITS EMPLOYEES THE APPLICABLE WAGE RATES FOR THE CLASSIFICATIONS OF WORK PERFORMED. INITIALLY, THE DEPARTMENT OF THE ARMY DETERMINED THAT THE SUBCONTRACTOR HAD UNDERPAID ITS EMPLOYEES A TOTAL OF $6,707.69 IN VIOLATION OF THE DAVIS-BACON ACT, 40 U.S.C. SEC. 576A (1976), AND THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT, 40 U.S.C. SEC. 327 (1976). BOTH THE SUBCONTRACTOR AND THE PRIME CONTRACTOR, HENSEL PHELPS CONSTRUCTION CO., DISPUTED THIS DETERMINATION. SUBSEQUENTLY, THE SUBCONTRACTOR AND THE DEPARTMENT OF LABOR ENTERED INTO A SETTLEMENT WHEREIN IT WAS AGREED THAT $2,841.05 (OF WHICH $568.53 IS DESIGNATED FOR DAVIS-BACON UNDERPAYMENTS) WOULD BE RETAINED FROM THE PRIME CONTRACT FOR DISBURSEMENT TO THE FOUR EMPLOYEES TO SETTLE ALL WAGE CLAIMS. SETTLEMENT OF THE WAGE UNDERPAYMENTS SHOULD BE MADE ON THE BASIS OF THE STIPULATED AGREEMENT. SEE B-193198-O.M., OCTOBER 20, 1982, AND B-199700-O.M., AUGUST 15, 1980.

THE DEPARTMENT OF LABOR DOES NOT RECOMMEND IMPOSITION OF DEBARMENT SANCTIONS. WE CONCUR WITH THIS RECOMMENDATION SINCE THE LARGER VIOLATIONS WERE BREACHES OF THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT AND THE DEPARTMENT OF LABOR CHOSE NOT TO DEBAR UNDER THE ACT. SEE B-205949-O.M., MARCH 29, 1982, WHICH EXPLAINS GAO'S ROLE UNDER THAT ACT. MOST OF THE DAVIS-BACON ACT BIOLATIONS WERE MINOR AND DO NOT INDICATE A WILLFUL INTENT TO UNDERPAY THE EMPLOYEES. ALL OF THE UNDERPAID EMPLOYEES WERE PAID A LOWER WAGE RATE WITHIN THE SAME, OR A CLOSELY RELATED, CLASSIFICATION WHERE THE MONETARY DIFFERENCES BETWEEN THE WAGE RATES WERE MINOR. FOR EXAMPLE, TWO EMPLOYEES WERE CLASSIFIED AND PAID AS POWER EQUIPMENT OPERATORS GROUP 3, WHEREAS THEY SHOULD HAVE BEEN CLASSIFIED AND PAID AS POWER EQUIPMENT OPERATORS GROUP 4. THERE IS A 15-CENT-PER-HOUR DIFFERENCE BETWEEN THESE TWO CLASSIFICATIONS. THE BALANCE OF THE VIOLATIONS, CONSISTING OF FAILURES TO PAY FRINGE BENEFITS TO TWO OF THE FOUR EMPLOYEES FOR PART OF THE TIME WORKED AND 2 HOURS STRAIGHT TIME, COULD WELL HAVE BEEN THE RESULT OF CARELESS BOOKKEEPING. THE SUBCONTRACTOR DID NOT FALSIFY THE PAYROLLS OR ATTEMPT IN ANY OTHER WAY TO CONCEAL THESE DAVIS- BACON UNDERPAYMENTS. SEE B-207951-O.M., DECEMBER 6, 1982.

CONCERNING THE PRIME CONTRACTOR, THERE IS NO EVIDENCE THAT IT PARTICIPATED IN OR CONTRIBUTED TO THE DISREGARD OF OBLIGATIONS TO THE EMPLOYEES WITHIN THE INTENT OF THE DAVIS-BACON ACT SO AS TO PROVIDE A BASIS FOR DEBARMENT. SEE B-193621-O.M., MARCH 7, 1979.