B-207644.OM., OCT 20, 1982

B-207644.OM., OCT 20, 1982

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 BOBBY E. WHITE WHICH PERFORMED WORK UNDER THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS CONTRACT NO. DACA21- 79-C-0136 AT HUNTER ARMY AIRFIELD, GEORGIA.

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 $1,726.95 ON DEPOSIT HERE TO THE AGGRIEVED WORKER 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 MS. LILLIE M. JORDAN ON EXTENSION 53218.

INDORSEMENT

ASSOCIATE DIRECTOR-AFMD, CLAIMS GROUP

RETURNED. THE EVIDENCE OF RECORD IS SUFFICIENT TO ESTABLISH THAT THE EMPLOYEE IN QUESTION PERFORMED THE WORK OF A CARPENTER EVEN THOUGH HE WAS CLASSIFIED EITHER AS A LABORER OR A CARPENTER TENDER (A TYPE OF HELPER) DURING THE PERIOD HE WORKED FOR THE CONTRACTOR INSTALLING INSULATION. THE CONTRACTOR MAINTAINED THAT THE EMPLOYEE WAS HIRED AS A CARPENTER'S HELPER FOR THE ENTIRE CONTRACT PERIOD. HOWEVER, ACCORDING TO THE CONSTRUCTION INSPECTOR ON THE JOB, THE AREA PRACTICE IN THE SAVANNAH, GEORGIA, AREA, WHERE THE CONTRACT WAS BEING PERFORMED, WAS FOR CARPENTERS TO INSTALL INSULATION IF THE WORK INVOLVES USE OF TOOLS OF THE TRADE; WHEREAS, IF THE WORK DOES NOT INVOLVE TOOLS OF THE TRADE, LABORERS CAN BE USED. THE EMPLOYEE IN QUESTION USED CARPENTER'S TOOLS.

THE CONTRACTING OFFICER ISSUED A DECISION UNDER THE DISPUTES CLAUSE THAT THE EMPLOYEE PERFORMED 397 HOURS AS A CARPENTER RESULTING IN A TOTAL UNDERPAYMENT OF $1,726.95. THE CONTRACTOR DID NOT APPEAL THE DECISION. THE DEPARTMENT OF LABOR IN PROCESSING THE UNDERPAYMENT TO OUR OFFICE DID NOT TAKE ISSUE WITH THE CONTRACTING OFFICER'S HOLDING. UNDER THE TERMS OF THE STANDARD CONTRACT FORM 19-A, WHERE THERE IS A DISPUTE AS TO CLASSIFICATION, THE DETERMINATION OF THE SECRETARY OF LABOR AS TO THE PROPER CLASSIFICATION IS FINAL. GIVEN THE UNAPPEALED DECISION OF THE CONTRACTING OFFICER ON THE FACTS AND THE IMPLICIT AGREEMENT OF THE DEPARTMENT OF LABOR THAT THE CARPENTER CLASSIFICATION APPLIES, THE FUNDS ON DEPOSIT SHOULD BE DISBURSED TO THE AGGRIEVED EMPLOYEE IN ACCORDANCE WITH THE CONTRACTING OFFICER'S DECISION. SEE GENERALLY VENTILATION CLEANING ENGINEERS, INC., 54 COMP.GEN. 24 (1974), 74-2 CPD 26.

WE AGREE WITH THE DEPARTMENT OF LABOR THAT DEBARMENT IS NOT WARRANTED SINCE THERE WAS A BONA FIDE DISAGREEMENT OR DISPUTE CONCERNING THE CLASSIFICATION OF THE WORKER IN QUESTION AND THE UNDERPAYMENT WAS NOT OF SUCH A WILLFUL NATURE AS TO WARRANT DEBARMENT OF THE CONTRACTOR. SEE B-198964-O.M., MARCH 15, 1982.