B-197004.OM, APR 11, 1980

B-197004.OM, APR 11, 1980

PRECIS-UNAVAILABLE

ASSOCIATE DIRECTOR, FCMS DIVISION-CLAIMS DIVISION:

RETURNED. THE EVIDENCE OF RECORD IS SUFFICIENT TO ESTABLISH THAT THE EMPLOYEES OF SHAFER PLUMBING AND HEATING, INC. (SHAFER), AND ITS SUBCONTRACTOR, BENTLEY SHEET METAL ROOFING CO., INC. (BENTLEY), WERE UNDERPAID. HOWEVER, IN REGARD TO DEBARMENT WE AGREE WITH THE DEPARTMENT OF LABOR'S VIEW THAT UNDER THE CIRCUMSTANCES OF THE PRESENT CASE DEBARMENT OF EITHER FIRM IS UNWARRANTED.

THE RECORD INDICATES THAT VIOLATIONS BY BENTLEY WERE THE RESULT OF THAT FIRM'S USE OF THE "ROOFER HELPER" CLASSIFICATION, A CLASSIFICATION WHICH HAD BEEN INCLUDED IN PREVIOUS WAGE DETERMINATIONS AND HAD BEEN USED BY BENTLEY FOR MANY YEARS. HOWEVER, THE WAGE DETERMINATION FOR THE PRESENT CONTRACT (DACA63-75-C-0231) DID NOT INCLUDE THE CLASSIFICATION OF "ROOFER HELPER." APPARENTLY, BENTLEY DID NOT NOTICE THIS FACT SINCE THE FIRM CLASSIFIED AND PAID SEVERAL OF ITS EMPLOYEES AS "ROOFER HELPERS" AND SO INDICATED ON THE CERTIFIED PAYROLLS. THUS, IT DOES NOT APPEAR THAT THE UNDERPAYMENTS WERE OF SUCH A WILLFUL NATURE AS TO WARRANT DEBARMENT.

CONCERNING SHAFER, THE RECORD INDICATES THAT THE VIOLATIONS WERE RELATIVELY MINOR, AMOUNTING TO ONLY $377.56 ON AN $841,755 CONTRACT, AND PROBABLY RESULTED FROM CAUSES OTHER THAN A WILLFUL INTENT ON THE PART OF SHAFER TO UNDERPAY ITS WORKERS. SEE, B-178561-O.M., FEBRUARY 14, 1974. THE FIRM APPEARS TO HAVE BEEN POORLY MANAGED AS EVIDENCED BY THE FACT THAT THE CONTRACT WAS TERMINATED FOR REASONS OTHER THAN LABOR STANDARDS VIOLATIONS AND THE FACT THAT DURING THE PERIOD IN QUESTION THERE WERE THREE DIFFERENT INDIVIDUALS WHO HANDLED THE PAYROLLS. THE LATTER FACT UNDOUBTEDLY CONTRIBUTED TO THE MISCLASSIFICATION AND UNDERPAYMENT OF TWO OF THE EMPLOYEES, ONE OF WHOM WAS ONLY UNDERPAID $32.50. THE THIRD EMPLOYEE, A CARPENTER, WAS INJURED AND APPARENTLY ONLY ABLE TO DO LIGHT WORK FOR A CERTAIN PERIOD OF TIME DURING WHICH SHAFER APPARENTLY FELT THAT THE EMPLOYEE WAS NOT ENTITLED TO FULL PAY AS A CARPENTER.

ALSO, THE RECORD INDICATES THAT PRESLEY SHAFER, III, WHO WAS RESPONSIBLE FOR THE DAY-TO-DAY OPERATIONS OF THE FIRM, WAS ARGUMENTIVE AND NOT ALWAYS COOPERATIVE WITH PROCUREMENT PERSONNEL. HOWEVER, WE ARE NOT PREPARED TO SAY THAT MR. SHAFER'S WILLINGNESS TO TAKE ISSUE WITH THE PROCUREMENT PERSONNEL, REGARDING APPLICABILITY OF CERTAIN CLASSIFICATIONS, IS NECESSARILY CONDUCT OF A NATURE WHICH WOULD WARRANT DEBARMENT. THIS IS ESPECIALLY TRUE IN LIGHT OF THE FACT THAT SHAFER EVENTUALLY DID PAY ALL OF THE EMPLOYEES, EXCEPT FOR ONE WHOM SHAFER CLAIMS TO HAVE BEEN UNABLE TO LOCATE, THE AMOUNT THAT THE CONTRACTING OFFICER CALCULATED WAS DUE THEM.

THE FUNDS ON DEPOSIT WITH YOUR OFFICE MAY BE DISBURSED TO THE EMPLOYEE IN QUESTION IN ACCORDANCE WITH ESTABLISHED PROCEDURES.

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 SHAFER PLUMBING AND HEATING, INC. WHICH PERFORMED WORK UNDER DEPARTMENT OF ARMY CONTRACT NO. DACA63-75-C- 0231 AT KELLY AFB, TEXAS.

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 $150.66 ON DEPOSIT HERE TO THE ONE EMPLOYEE WHO COULD NOT BE LOCATED, 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 CONSIDERATIONS AND INSTRUCTIONS.

FOR FURTHER INFORMATION, PLEASE CONTACT MS. MARCIA BROWN ON EXTENSION 53218.