B-217859, JUL 22, 1985

B-217859: Jul 22, 1985

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THERE WAS A SUBSTANTIAL VIOLATION OF THE ACT IN THAT NONPAYMENT OF EMPLOYEES AND SUBSEQUENT FALSIFICATION OF RECORDS WAS INTENTIONAL. THE CONTRACTOR WILL BE DEBARRED UNDER THE ACT. THESE CONTRACTS WERE SUBJECT TO THE DAVIS-BACON ACT REQUIREMENTS THAT CERTAIN MINIMUM WAGES BE PAID. THE CONTRACTOR WAS REQUIRED TO PAY EMPLOYEES AT LEAST ONCE A WEEK AND TO SUBMIT PAYROLL RECORDS CERTIFIED AS TO CORRECTNESS AND COMPLETENESS. FOUND THAT CERTIFIED PAYROLLS WERE FALSIFIED TO CONCEAL THE MINIMUM WAGE VIOLATIONS. WAS SENT TO HAWKINS ADVISING IN DETAIL OF THE VIOLATIONS WITH WHICH IT WAS CHARGED. THAT DEBARMENT WAS POSSIBLE. HAWKINS WAS GIVEN AN OPPORTUNITY FOR A HEARING ON THE MATTER BEFORE AN ADMINISTRATIVE LAW JUDGE IN ACCORDANCE WITH 29 C.F.R.

B-217859, JUL 22, 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 FAILED TO PAY ITS EMPLOYEES THE MINIMUM WAGES REQUIRED BY THE ACT AND HAD FALSIFIED CERTIFIED PAYROLL RECORDS. 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 NONPAYMENT OF EMPLOYEES AND SUBSEQUENT FALSIFICATION OF RECORDS WAS INTENTIONAL. THEREFORE, THE CONTRACTOR WILL BE DEBARRED UNDER THE ACT.

JAMES L. HAWKINS CONSTRUCTION COMPANY DAVIS-BACON ACT DEBARMENT:

THE ASSISTANT ADMINISTRATOR, EMPLOYMENT STANDARDS ADMINISTRATION, UNITED STATES DEPARTMENT OF LABOR (DOL), BY LETTER DATED NOVEMBER 28, 1984, RECOMMENDED THAT JAMES L. HAWKINS CONSTRUCTION COMPANY (HAWKINS), AND JAMES L. HAWKINS, INDIVIDUALLY AND AS OWNER, BE PLACED ON THE INELIGIBLE BIDDERS LIST FOR VIOLATIONS OF THE DAVIS-BACON ACT, 40 U.S.C. SECS. 276A TO 276A-5 (1982), WHICH CONSTITUTED A DISREGARD OF OBLIGATIONS TO EMPLOYEES UNDER THE ACT. FOR REASONS THAT FOLLOW, WE CONCUR IN DOL'S RECOMMENDATION.

HAWKINS PERFORMED WORK UNDER TWO CONTRACTS (F04700-83-C-0063 AND F04700- 83-M-2724), WITH THE UNITED STATES AIR FORCE, DOING CONSTRUCTION AND RELATED WORK. THESE CONTRACTS WERE SUBJECT TO THE DAVIS-BACON ACT REQUIREMENTS THAT CERTAIN MINIMUM WAGES BE PAID. FURTHER, PURSUANT TO 29 C.F.R. SEC. 5.5(A) (1984), THE CONTRACTOR WAS REQUIRED TO PAY EMPLOYEES AT LEAST ONCE A WEEK AND TO SUBMIT PAYROLL RECORDS CERTIFIED AS TO CORRECTNESS AND COMPLETENESS.

THE DOL FOUND AS A RESULT OF AN INVESTIGATION THAT THE CONTRACTOR DID NOT PAY ANY WAGES TO ITS EMPLOYEES. FURTHER, DOL, FOUND THAT CERTIFIED PAYROLLS WERE FALSIFIED TO CONCEAL THE MINIMUM WAGE VIOLATIONS. IN FACT, THE FALSE PAYROLL RECORDS SUBMITTED BY THE FIRM DID NOT COVER ALL OF THE PERIODS THE EMPLOYEES WORKED ON THE CONTRACTS, NOR DID THEY INCLUDE THE NAMES OF ALL THE WORKERS. THE DOL INFORMED US THAT A CERTIFIED LETTER DATED OCTOBER 3, 1984, WAS SENT TO HAWKINS ADVISING IN DETAIL OF THE VIOLATIONS WITH WHICH IT WAS CHARGED, AND THAT DEBARMENT WAS POSSIBLE. ALSO, HAWKINS WAS GIVEN AN OPPORTUNITY FOR A HEARING ON THE MATTER BEFORE AN ADMINISTRATIVE LAW JUDGE IN ACCORDANCE WITH 29 C.F.R. SECS. 5.11(B) AND 5.123(B) (1984). THE DOL REPORTED TO US THAT ALTHOUGH THE LETTER WAS SENT TO THE LAST KNOWN ADDRESS, THE LETTER WAS RETURNED BY THE U.S. POSTAL SERVICE WITH THE NOTATION "ATTEMPTED - NOT KNOWN." FURTHER ATTEMPTS TO LOCATE THE CONTRACTOR WERE UNSUCCESSFUL. AFTER REEXAMINING THE RECORD, DOL FOUND THAT HAWKINS VIOLATED THE DAVIS-BACON ACT WITHOUT ANY FACTORS MILITATING AGAINST DEBARMENT. THEREFORE, DOL RECOMMENDED THAT JAMES L. HAWKINS CONSTRUCTION COMPANY, AND JAMES L. HAWKINS, INDIVIDUALLY AND AS OWNER, BE PLACED ON THE INELIGIBLE BIDDERS LIST FOR VIOLATIONS OF THE DAVIS-BACON ACT WHICH CONSTITUTED A DISREGARD OF OBLIGATIONS TO EMPLOYEES UNDER THE ACT.

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 CIRCULAR LETTER B-3368, MARCH 19, 1957, WE DISTINGUISHED BETWEEN "TECHNICAL VIOLATIONS" WHICH RESULT FROM INADVERTENCE OR LEGITIMATE DISAGREEMENT CONCERNING CLASSIFICATION, AND "SUBSTANTIAL VIOLATIONS" WHICH WERE 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 HOME IMPROVEMENT ROOFING CO., INC., B-215945, JANUARY 25, 1985.

BASED ON OUR INDEPENDENT REVIEW OF THE RECORD IN THIS MATTER, WE CONCLUDE THAT JAMES L. HAWKINS CONSTRUCTION COMPANY DISREGARDED ITS OBLIGATIONS TO EMPLOYEES UNDER THE DAVIS-BACON ACT. THERE WAS A SUBSTANTIAL VIOLATION OF THE DAVIS-BACON ACT IN THAT THE NONPAYMENT OF EMPLOYEES WAS INTENTIONAL AS FURTHER DEMONSTRATED BY HAWKINS' BAD FAITH IN THE FALSIFICATION OF CERTIFIED PAYROLL RECORDS.

THEREFORE, THE NAMES JAMES L. HAWKINS CONSTRUCTION COMPANY, AND JAMES L. HAWKINS, INDIVIDUALLY AND AS OWNER, SHALL BE INCLUDED ON A LIST OF INELIGIBLE BIDDERS TO BE DISTRIBUTED TO ALL DEPARTMENTS OF THE GOVERNMENT. 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.

FURTHER, WE FIND NO REASON TO OBJECT TO THE PAYMENT OF THE WORKERS INVOLVED. ACCORDINGLY, WE ORDER THAT THE FUNDS ON DEPOSIT WITH OUR OFFICE BE DISBURSED IN ACCORDANCE WITH ESTABLISHED PROCEDURES.