B-197510.OM, L/M, MAR 17, 1980

B-197510.OM, L/M, MAR 17, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

HERE IS THE FILE PERTAINING TO THE APPARENT VIOLATIONS OF THE DAVIS BACON ACT, 40 U.S.C. 276A, BY CORLEY MECHANICAL CONTRACTORS PERFORMING WORK UNDER DEPARTMENT OF ARMY, CONTRACT NO. DABT31-75-C-0273 AT FORT LEONARD WOOD, MISSOURI.

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 $32,082.28 ON DEPOSIT HERE TO THE 7 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 MS. MARCIA BROWN ON EXTENSION 53218.

INDORSEMENT

DIRECTOR, CLAIMS DIVISION

RETURNED. CORLEY MECHANICAL CONTRACTORS (CORLEY) WAS AWARDED CONTRACT NO. DABT31-75-C-0273 FOR THE REPAIR AND REPLACEMENT OF HEATING EQUIPMENT IN CERTAIN AREAS AT FORT LEONARD WOOD, MISSOURI. THE RECORD INDICATES THAT IT WAS THE PREVAILING AREA PRACTICE TO USE PIPEFITTERS TO PERFORM ALL BUT A SMALL PORTION OF THE WORK. HOWEVER, AN INVESTIGATION BY THE DEPARTMENT OF LABOR (DOL) REVEALED THAT CORLEY USED WORKERS CLASSIFIED AND PAID AS LABORERS TO PERFORM THE THE WORK. IT WAS ALSO DISCOVERED THAT CORLEY CLASSIFIED ONE OF ITS EMPLOYEES, WHO PERFORMED PIPEFITTER WORK, AS A FOREMAN AND PAID HIM A WAGE RATE LESS THAN THE PREVAILING WAGE FOR PIPEFITTERS. BACK WAGES IN THE AMOUNT OF $32,082.24 WERE DETERMINED TO BE DUE SEVEN EMPLOYEES.

THE CONTRACTOR DECLINED TO MAKE RESTITUTION CONTENDING THAT THE EMPLOYEES IN QUESTION HAD IN FACT BEEN CLASSIFIED AND PAID PROPERLY. FUNDS WERE RETAINED UNDER THE CONTRACT TO PROTECT THE EMPLOYEES. CORLEY, PURSUANT TO SECTION 5.11(B) OF THE CODE OF FEDERAL REGULATIONS (CFR), LODGED AN APPEAL WITH DOL. AN ADMINISTRATIVE LAW JUDGE DETERMINED THAT THE EMPLOYEES IN QUESTION HAD BEEN UNDERPAID THE ABOVE AMOUNT. CORLEY PETITIONED THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION FOR A REVIEW OF THE ADMINISTRATIVE LAW JUDGE'S DECISION. THE ADMINISTRATOR AFFIRMED THE ADMINISTRATIVE LAW JUDGE'S DECISION AS DID THE WAGE APPEALS BOARD.

THE RECORD INDICATES, AS MENTIONED ABOVE, THAT IT WAS THE PREVAILING AREA PRACTICE TO USE PIPEFITTERS TO PERFORM THE TYPE OF WORK CALLED FOR BY THE ABOVE CONTRACT. WE HAVE HELD THAT WHILE AN EXCLUSIVE AREA PRACTICE MUST BE FOLLOWED, A PREVAILING AREA PRACTICE NEED NOT BE FOLLOWED IF A SUBSTANTIAL AREA PRACTICE TO THE CONTRARY CAN BE SHOWN. 51 COMP.GEN. 42, 44 (1971). HOWEVER CORLEY FAILED TO ESTABLISH THAT THERE WAS A CONTRARY SUBSTANTIAL AREA PRACTICE TO PERFORM THE WORK IN QUESTION. THEREFORE, THE FUNDS ON DEPOSIT WITH YOUR OFFICE MAY BE DISBURSED TO THE AGGRIEVED WORKERS IN ACCORDANCE WITH ESTABLISHED PROCEDURES.

SINCE IT APPEARS THAT CORLEY MIGHT HAVE BEEN UNDER THE IMPRESSION THAT IT WAS PERMISSIBLE TO CLASSIFY THE EMPLOYEES AS IT DID, WE CONCUR WITH DOL THAT DEBARMENT IS NOT WARRANTED