B-212600.OM., AUG 25, 1983

B-212600.OM., AUG 25, 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, BY PETE E. O'DELL AND SONS, INC., PULASKI, VIRGINIA, WHICH PERFORMED WORK UNDER ARMY CORPS OF ENGINEERS CONTRACT NO. DACA87-80-C-0171 AT RADFORD ARMY AMMUNITION PLANT, RADFORD, VIRGINIA.

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 $17,817.73 ON DEPOSIT HERE TO THE 19 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. ON JUNE 4, 1980, CENTEX CONSTRUCTION COMPANY, INC. (CENTEX), WAS AWARDED CONTRACT NO. DACA87-80-C-0171 FOR THE CONSTRUCTION OF A CONTINUOUS AUTOMATED MULTIBASE LINE AT THE RADFORD ARMY AMMUNITION PLANT, RADFORD, VIRGINIA. A SUBCONTRACT FOR THE PERFORMANCE OF REINFORCING AND STRUCTURAL STEEL WORK WAS AWARDED TO PETE E. O'DELL & SONS, INC. (O'DELL).

O'DELL USED LABORERS NOT ONLY TO HAND UNLOAD THE REINFORCING STEEL AND CARRY IT TO THE STOCKPILE, BUT ALSO TO CARRY THE STEEL FROM THE STOCKPILE TO THE SITE OF WORK AND BOLT IT IN PLACE. THERE IS SOME EVIDENCE OF RECORD INDICATING THAT IT HAD BEEN THE PREVAILING PRACTICE AT THE RADFORD ARSENAL TO USE LABORERS TO PERFORM ALL OF THE ABOVE FUNCTIONS. THE DEPARTMENT OF LABOR (DOL) WAS REQUESTED TO ISSUE A RULING ON THE QUESTION OF WHAT CLASSIFICATION OF WORKER SHOULD PERFORM THE ABOVE FUNCTIONS. SEPTEMBER 25, 1980, DOL RULED THAT HAND UNLOADING AND CARRYING OF THE REINFORCING STEEL TO THE STOCKPILE WAS LABORERS WORK, BUT WORKERS WHO CARRIED THE STEEL FROM THE STOCKPILE AND PLACED IT AT THE JOB SITE HAD TO BE CLASSIFIED AND PAID AS IRONWORKERS. O'DELL SUBSEQUENTLY APPEALED DOL'S RULING AND ON JANUARY 13, 1982, DOL ISSUED A RULING SUSTAINING ITS SEPTEMBER 25, 1980, RULING. ULTIMATELY, O'DELL ACCEPTED THE ABOVE RULING AND AN AGREEMENT WAS NEGOTIATED WITH THE NORFOLK DISTRICT OF THE CORPS OF ENGINEERS CONCERNING THE AMOUNT OF RESTITUTION ($17,817.73) DUE THE 19 UNDERPAID EMPLOYEES.

ACCORDINGLY, THE FUNDS ON DEPOSIT WITH YOUR OFFICE SHOULD BE DISBURSED TO THE AGGRIEVED WORKERS IN ACCORDANCE WITH THE AGREEMENT BETWEEN O'DELL AND THE CORPS OF ENGINEERS.

WHILE O'DELL, FOR THE MOST PART, PAID THE ABOVE WORKERS AS LABORERS ALL DURING THE CONTRACT PERIOD, WHICH WAS CONTRARY TO DOL'S RULING, DEBARMENT IS NOT RECOMMENDED. THE DEPARTMENT OF LABOR DID NOT RECOMMEND DEBARMENT. THE RECORD INDICATES THAT THERE WAS A BONA FIDE DISAGREEMENT OR DISPUTE CONCERNING CLASSIFICATION OF THE EMPLOYEES IN QUESTION AND THE UNDERPAYMENTS WERE NOT OF SUCH A WILLFUL NATURE AS TO WARRANT DEBARMENT OF EITHER THE CONTRACTOR OR SUBCONTRACTOR. SEE B-207643.OM., OCTOBER 20, 1982, AND B-207642.OM., OCTOBER 20, 1982.