B-201411.OM, AUG 28, 1981

B-201411.OM, AUG 28, 1981

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, AND THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT, 40 U.S.C. 327 ET SEQ., BY DICKERSON AND SUTTON AND SONS, INC., SUBCONTRACTOR TO RAVENNA ARSENAL, INC., WHICH PERFORMED WORK UNDER DEPARTMENT OF ARMY CONTRACT NO. DAAA09-70-C-0002 (PURCHASE ORDER NO. 84659 CH-I AT REVENNA ARMY AMMUNITION PLANT, RAVENNA, OHIO.)

DETAILS OF THE VIOLATIONS AND ADMINISTRATIVE RECOMMENDATIONS CONCERNING DEBARMENT ARE CONTAINED IN THE ATTACHED INVESTIGATIVE REPORT AND DEPARTMENT OF LABOR TRANSMITTAL LETTER. IT IS NOTED THAT WHILE BACK WAGES ARE DUE UNDER CONTRACT NO. DAAA09-70-C-0002, THE $5,322.70 ON DEPOSIT HERE WAS WITHHELD FROM PAYMENTS DUE DICKERSON AND SUTTON AND SONS, INC. ON A SUCCESSOR CONTRACT, NO. DAAA09-77-C-4001. THE CONTRACTING AGENCY CONTENDS THAT THE TWO CONTRACTS WERE MERELY EXTENSIONS OF AN EARLIER DOCUMENT WHEREIN THE GOVERNMENT AND RAVENNA ARSENAL, INC. (PRIME CONTRACTOR) FIRST ENTERED INTO A FORMAL AGREEMENT TO OPERATE THE PLANT.

WE PROPOSE TO DISBURSE THE FUNDS ON DEPOSIT HERE IN ACCORDANCE WITH YOUR INSTRUCTIONS. OUR PROPOSAL AND THE MATTER OF WHETHER THE CONTRACTOR'S NAME SHOULD BE PLACED ON THE DEBARRED BIDDER'S 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

ASSOCIATE DIRECTOR, AFMD-CLAIMS GROUP

RETURNED. THE EVIDENCE OF RECORD IS SUFFICIENT TO ESTABLISH THAT DICKERSON AND SUTTON AND SONS, INC., A SUBCONTRACTOR ON DEPARTMENT OF ARMY CONTRACT NO. DAAA09-70-C-0002, UNDERPAID THE WORKERS IN QUESTION IN VIOLATION OF THE DAVIS-BACON ACT AND THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT. AN AMOUNT SUFFICIENT TO REIMBURSE THE UNDERPAID WORKERS WAS NOT WITHHELD FROM FUNDS DUE THE CONTRACTOR, RAVENNA ARSENAL, INC. (RAVENNA), UNDER THE CONTRACT. HOWEVER, SINCE THE CONTRACTOR HAS VOLUNTARILY REIMBURSED THE WORKERS, AS EVIDENCED BY COPIES OF THE CHECKS SENT TO WORKERS WHO COULD BE LOCATED AND THE CHECK SENT TO GAO TO REIMBURSE THE WORKERS WHO COULD NOT BE LOCATED, THE DOCTRINE OF WHITNEY BROS. PLUMBING AND HEATING, INC. V. UNITED STATES, 224 F.SUPP. 860 (1963), WOULD NOT BE APPLICABLE. SEE B-185875-O.M., MARCH 16, 1976.

WHILE PERHAPS THE WEIGHT OF THE EVIDENCE WOULD SUPPORT DEBARMENT OF THE SUBCONTRACTOR, WE CONCUR WITH THE DEPARTMENT OF LABOR'S VIEW THAT DEBARMENT IS NOT WARRANTED SINCE (1) IT HAS BEEN IN EXCESS OF 6 YEARS SINCE THE VIOLATIONS OCCURRED AND AN EXTENDED PERIOD OF TIME WOULD BE REQUIRED TO ACCORD THE SUBCONTRACTOR DUE PROCESS BEFORE WE COULD IMPOSE DEBARMENT WHICH WOULD ONLY DELAY REIMBURSEMENT OF THE UNDERPAID WORKERS, AND (2) ACCORDING TO THE DEPARTMENT OF LABOR, THE SUBCONTRACTOR IS NO LONGER IN BUSINESS. SEE B-197903-O.M., APRIL 25, 1980. WE DO NOT BELIEVE THAT DEBARMENT OF THE CONTRACTOR IS WARRANTED SINCE THERE IS NO EVIDENCE INDICATING THAT IT WILLFULLY PARTICIPATED IN OR CONTRIBUTED TO THE DISREGARD OF OBLIGATION TO EMPLOYEES WITHIN THE INTENT OF THE DAVIS-BACON ACT SO AS TO PROVIDE A BASIS FOR DEBARMENT. SEE B-200301-O.M., B-200302- O.M., OCTOBER 17, 1980.

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