B-202092.OM, APR 15, 1981

B-202092.OM, APR 15, 1981

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING THE FILE PERTAINING TO THE APPARENT VIOLATIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, BY JAY M. JALENAK ENGINEERING COMPANY, INC., METAIRE, LOUISIANA, WHICH PERFORMED WORK UNDER DEPARTMENT OF THE NAVY CONTRACT NO. N62467-77C-7250 AT NAVAL AIR STATION, NEW ORLEANS, LOUISIANA.

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 $3,105.11 ON DEPOSIT HERE TO THE THREE 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 EXTENSION 53218.

INDORSEMENT

ASSOCIATE DIRECTOR-AFMD, CLAIMS GROUP

RETURNED. IN REGARD TO MR. GLEN DEWENTER AND MR. DENNIS E. ROBINSON, THE CERTIFIED PAYROLLS ESTABLISH THE NUMBER OF HOURS THAT THEY WORKED AND THE LABOR STANDARDS INTERVIEW STATEMENTS, COUPLED WITH THE EMPLOYEES' PERSONAL STATEMENTS, ESTABLISH THAT BOTH EMPLOYEES WORKED AS PIPEFITTERS. THEREFORE, WE ARE OF THE VIEW THAT THE EVIDENCE OF RECORD IS SUFFICIENT TO ESTABLISH THAT THESE TWO EMPLOYEES WERE UNDERPAID THE AMOUNTS FOUND DUE. IN REGARD TO THE THIRD EMPLOYEE, DONALD ADAMS, JR., HE STATES THAT HE WORKED FROM DECEMBER 16, 1977, TO MARCH 2, 1978. FOR MUCH OF THIS PERIOD HE WAS NOT LISTED ON THE CERTIFIED PAYROLLS. ON THE BASIS OF THE PRESENT RECORD WE FIND NO REASON TO DISBELIEVE THIS UNCONTRADICTED STATEMENT. THE CERTIFIED PAYROLLS INDICATE THAT HE WORKED DURING THE WEEKS ENDING ON FEBRUARY 9, 16, AND 23, 1978, AND MARCH 2, 1978, AND ACCORDING TO THE COMPLIANCE OFFICER WHO CONDUCTED THE LABOR STANDARDS INTERVIEW, THIS EMPLOYEE WORKED ON DECEMBER 19, 20, 21, 27 AND 28, 1977, EVEN THOUGH HE WAS NOT LISTED ON THE CERTIFIED PAYROLLS FOR THOSE DATES. ALSO, THE EMPLOYEE WAS WORKING ON JANUARY 5, 1978, THE DAY THE INTERVIEW WAS CONDUCTED, BUT WAS NOT LISTED ON THE CERTIFIED PAYROLLS. THUS, WE MUST ASSUME, IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, THAT THIS EMPLOYEE WORKED ALL OF THE MONTH OF JANUARY 1978. THUS, IT IS OUR VIEW THAT THE RECORD IS SUFFICIENT TO ESTABLISH THAT THIS EMPLOYEE IS ENTITLED TO THE AMOUNT FOUND DUE HIM.

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

REGARDING THE QUESTION OF WHETHER THE CONTRACTOR, JAY M. JALENAK ENGINEERING COMPANY, INC., SHOULD BE DEBARRED, WE ARE OF THE VIEW THAT DEBARMENT SANCTIONS SHOULD NOT BE IMPOSED SINCE IT HAS BEEN IN EXCESS OF 3 YEARS SINCE THE VIOLATIONS OCCURRED, AND IF WE WERE TO INITIATE DEBARMENT PROCEEDINGS AT THIS TIME, THE CONTRACTOR WOULD HAVE TO BE ACCORDED DUE PROCESS. DUE PROCESS IN THIS CASE WOULD ENTAIL, AT THE MINIMUM, NOTICE AND SOME TYPE OF HEARING WHICH WOULD FURTHER DELAY PAYMENT OF THE WORKERS. SEE B-200299-O.M., OCTOBER 7, 1980, AND B-192682-O.M., OCTOBER 17, 1978. THE DEPARTMENT OF LABOR DID NOT RECOMMEND THE IMPOSITION OF DEBARMENT SANCTIONS.

DIGEST

WHILE CONDUCT OF CONTRACTOR COULD BE CONSIDERED WILLFUL VIOLATION OF DAVIS-BACON ACT, DEBARMENT IS NOT WARRANTED SINCE VIOLATIONS OCCURRED IN EXCESS OF 3 YEARS AGO AND IF WE WERE TO INITIATE DEBARMENT PROCEEDINGS AT THIS TIME CONTRACTOR WOULD HAVE TO BE ACCORDED DUE PROCESS. DUE PROCESS WOULD ENTAIL NOTICE AND SOME TYPE OF HEARING WHICH WOULD FURTHER DELAY PAYMENT OF WORKERS.