B-217811, AUG 26, 1985

B-217811: Aug 26, 1985

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THERE WAS A SUBSTANTIAL VIOLATION OF THE ACT IN THAT THE UNDERPAYMENT OF EMPLOYEES WAS INTENTIONAL. THE CONTRACTOR WILL BE DEBARRED UNDER THE ACT. THE CONTRACT WAS SUBJECT TO THE DAVIS-BACON ACT REQUIREMENTS THAT CERTAIN MINIMUM WAGES BE PAID. THE CONTRACTOR WAS TO SUBMIT PAYROLL RECORDS CERTIFIED AS TO CORRECTNESS AND COMPLETENESS. THE DOL FOUND AS A RESULT OF AN INVESTIGATION THAT EMPLOYEES WERE NOT PAID THE MINIMUM WAGES REQUIRED PURSUANT TO THE DAVIS-BACON ACT. DOL FOUND THAT CERTIFIED PAYROLLS WERE FALSIFIED AND INCOMPLETE. THAT EMPLOYEES WERE NOT PAID OVERTIME COMPENSATION UNDER THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT. THESE PAYROLLS WERE CERTIFIED TO BE TRUE AND COMPLETE BY OSCAR THARPE AS CORPORATE SECRETARY.

B-217811, AUG 26, 1985

BIDDERS - DEBARMENT - LABOR STIPULATION VIOLATIONS - DAVIS-BACON ACT WAGE UNDERPAYMENTS - DEBARMENT REQUIRED DIGEST: THE DEPARTMENT OF LABOR RECOMMENDED DEBARMENT OF A CONTRACTOR UNDER THE DAVIS-BACON ACT BECAUSE THE CONTRACTOR HAD FALSIFIED CERTIFIED PAYROLL RECORDS, AND FAILED TO PAY ITS EMPLOYEES OVERTIME COMPENSATION. BASED ON OUR INDEPENDENT REVIEW OF THE RECORD IN THIS MATTER, WE CONCLUDE THAT THE CONTRACTOR DISREGARDED ITS OBLIGATIONS TO ITS EMPLOYEES UNDER THE ACT. THERE WAS A SUBSTANTIAL VIOLATION OF THE ACT IN THAT THE UNDERPAYMENT OF EMPLOYEES WAS INTENTIONAL. THEREFORE, THE CONTRACTOR WILL BE DEBARRED UNDER THE ACT.

THARPE AND THARPE, INC.-- DAVIS-BACON ACT DEBARMENT:

THE ASSISTANT ADMINISTRATOR, EMPLOYMENT STANDARDS ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR (DOL), BY A LETTER TO THE COMPTROLLER GENERAL, DATED NOVEMBER 1984, HAS RECOMMENDED THAT THE NAMES OF THARPE AND THARPE, INC., AND OF OSCAR THARPE, INDIVIDUALLY AND AS CORPORATE SECRETARY OF THARPE AND THARPE, INC., BE PLACED ON THE DEBARRED BIDDERS LIST FOR VIOLATIONS OF THE DAVIS-BACON ACT, 40 U.S.C. SECS. 276A TO 276A-5 (1982) AND THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT, 40 U.S.C. SECS. 527- 332 (1982). FOR THE FOLLOWING REASONS, WE CONCUR WITH DOL'S RECOMMENDATION, AND ORDER ITS IMPLEMENTATION.

THARPE AND THARPE, INC., PERFORMED WORK UNDER CONTRACT NO. 50-3434-3 00809, FOR THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE. THE CONTRACT WAS SUBJECT TO THE DAVIS-BACON ACT REQUIREMENTS THAT CERTAIN MINIMUM WAGES BE PAID. FURTHER, PURSUANT TO 29 C.F.R. SEC. 5.5, THE CONTRACTOR WAS TO SUBMIT PAYROLL RECORDS CERTIFIED AS TO CORRECTNESS AND COMPLETENESS.

THE DOL FOUND AS A RESULT OF AN INVESTIGATION THAT EMPLOYEES WERE NOT PAID THE MINIMUM WAGES REQUIRED PURSUANT TO THE DAVIS-BACON ACT. FURTHER, DOL FOUND THAT CERTIFIED PAYROLLS WERE FALSIFIED AND INCOMPLETE, AND THAT EMPLOYEES WERE NOT PAID OVERTIME COMPENSATION UNDER THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT. THESE PAYROLLS WERE CERTIFIED TO BE TRUE AND COMPLETE BY OSCAR THARPE AS CORPORATE SECRETARY. IN ADDITION, DOL ALSO FOUND OTHER VIOLATIONS OF THE DAVIS BACON ACT. THE DOL NOTIFIED THARPE AND THARPE, INC., OF THE VIOLATIONS OF WHICH IT WAS CHARGED BY CERTIFIED LETTER, TOGETHER WITH AN ADMONITION THAT DEBARMENT WAS POSSIBLE. FURTHER, THARPE AND THARPE, INC., WAS GIVEN AN OPPORTUNITY FOR A HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE IN ACCORDANCE WITH 29 C.F.R. SEC. 5.12(B) (1984). BY LETTER DATED SEPTEMBER 17, 1984, THARPE AND THARPE, INC., NOTIFIED DOL THAT IT DID NOT WISH TO HAVE A HEARING, BUT NOTED THAT RESTITUTION HAD BEEN MADE. AFTER REEXAMINING THE RECORD, DOL FOUND THAT THARPE AND THARPE, INC., VIOLATED THE DAVIS-BACON ACT WITHOUT ANY FACTORS MILITATING AGAINST DEBARMENT. THEREFORE, DOL RECOMMENDED THAT THE NAMES OF THARPE AND THARPE, INC., AND OF OSCAR THARPE, INDIVIDUALLY AND AS CORPORATE SECRETARY OF THARPE AND THARPE, INC., BE PLACED ON THE DEBARRED BIDDERS LIST FOR VIOLATIONS OF THE DAVIS-BACON ACT WHICH CONSTITUTED A DISREGARD OF OBLIGATIONS TO EMPLOYEES UNDER THE ACT. CONCUR IN THIS RECOMMENDATION. WE NOTE THAT THE RECORD INDICATES THAT RESTITUTION HAS BEEN MADE.

THE DAVIS-BACON ACT PROVIDES THAT THE COMPTROLLER GENERAL IS TO DEBAR PERSONS OR FIRMS WHOM HE HAS FOUND TO HAVE DISREGARDED THEIR OBLIGATIONS TO EMPLOYEES UNDER THE ACT. 40 U.S.C. SEC. 276A-2. IN B-3368, MARCH 19, 1957 WE DISTINGUISHED BETWEEN "TECHNICAL VIOLATIONS" WHICH RESULT FROM INADVERTENCE OR LEGITIMATE DISAGREEMENT CONCERNING CLASSIFICATION, AND "SUBSTANTIAL VIOLATIONS" WHICH ARE INTENTIONAL AS DEMONSTRATED BY BAD FAITH OR GROSS CARELESSNESS IN OBSERVING OBLIGATIONS TO EMPLOYEES WITH RESPECT TO THE MINIMUM WAGE PROVISIONS OF THE DAVIS-BACON ACT. FALSIFICATION OF PAYROLL RECORDS IS A BASIS FOR DEBARMENT UNDER THE DAVIS- BACON ACT. SEE, E.G., METROPOLITAN ROME IMPROVEMENT ROOFING CO., INC., B-215945, JANUARY 25, 1985.

BASED ON OUR INDEPENDENT REVIEW OF THE RECORD IN THIS MATTER, WE CONCLUDE THAT THARPE AND THARPE, INC., AND OSCAR THARPE, INDIVIDUALLY AND AS CORPORATE SECRETARY OF THARPE AND THARPE, INC., DISREGARDED THEIR OBLIGATIONS TO THEIR EMPLOYEES UNDER THE DAVIS-BACON ACT IN THAT THE UNDERPAYMENT OF EMPLOYEES WAS INTENTIONAL AS DEMONSTRATED BY THARPE AND THARPE, INC.'S BAD FAITH IN THE FALSIFICATION OF CERTIFIED PAYROLL RECORDS. MR. THARPE PERSONALLY PARTICIPATED IN THE FALSIFICATION OF THE PAYROLLS. IN ADDITION, THE RECORD SHOWS THAT THARPE AND THARPE, INC., FAILED TO PAY ITS EMPLOYEES OVERTIME COMPENSATION AND WE NOTE THAT DOL FOUND SUBSTANTIAL EVIDENCE OF OTHER VIOLATIONS.

ACCORDINGLY, WE ORDER THAT THE NAMES OF THARPE AND THARPE, INC., AND OF OSCAR THARPE, INDIVIDUALLY AND AS CORPORATE SECRETARY OF THARPE AND THARPE, INC., BE INCLUDED ON A LIST TO BE DISTRIBUTED TO ALL DEPARTMENTS OF THE GOVERNMENT, AND, PURSUANT TO STATUTORY DIRECTION (40 U.S.C. SEC. 276A-2), 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.