B-203310.OM, SEP 3, 1981

B-203310.OM, SEP 3, 1981

DIGEST: 1. WHERE SUBCONTRACTOR PAYS EMPLOYEES LESS THAN JOURNEYMAN WAGE RATE ON BASIS THAT WORKERS DID NOT POSSESS SKILLS OF JOURNEYMAN, WORKERS MUST BE PAID JOURNEYMAN WAGE RATE, SINCE EMPLOYEES PERFORMED FUNCTION NORMALLY DONE BY JOURNEYMEN AND EMPLOYEES WERE NOT REGISTERED IN APPROVED APPRENTICESHIP PROGRAM. DEBARMENT IS NOT WARRANTED, SINCE UNDERPAYMENTS WERE NOT RESULT OF WILLFUL INTENT TO UNDERPAY WORKERS. 2. DEBARMENT OF FIRST-TIER SUBCONTRACTOR AND CONTRACTOR IS NOT WARRANTED, SINCE THERE IS NO EVIDENCE INDICATING THAT EITHER PARTY PARTICIPATED IN OR CONTRIBUTED TO DISREGARD OF OBLIGATION TO EMPLOYEES WITHIN INTENT OF DAVIS -BACON ACT SO AS TO PROVIDE BASIS FOR DEBARMENT.

THE COMPTROLLER GENERAL:

WE ARE FORWARDING THE FILE PERTAINING TO THE APPARENT VIOLATIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, BY BLACKHAWK ELECTRIC, INC., TUCSON, ARIZONA, WHICH PERFORMED WORK UNDER DEPARTMENT OF THE AIR FORCE CONTRACT NO. F33657-70-C-0805 AT U.S.A.F. PLANT NO.44, TUCSON, ARIZONA.

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 $6,729.93 ON DEPOSIT HERE TO THE FOURTEEN 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. ALL OF THE PARTIES INVOLVED AGREE THAT THE EMPLOYEES OF THE SECOND-TIER SUBCONTRACTOR, BLACKHAWK ELECTRIC, INC. (BLACKHAWK), WHO WERE ALLEGEDLY UNDERPAID WORKED THE NUMBER OF HOURS INDICATED ON THE CERTIFIED PAYROLLS; HOWEVER, THERE IS A DISPUTE AS TO THE PROPER WAGE RATE FOR THESE EMPLOYEES. THE SUBCONTRACTOR PAID THE EMPLOYEES THE LABORER WAGE RATE GIVING AS A REASON FOR DOING SO THE FACT THAT NONE OF THE EMPLOYEES POSSESSED THE SKILL OF JOURNEYMEN ELECTRICIANS. BLACKHAWK DID EMPLOY BONA FIDE LABORERS WHO PERFORMED LABORER'S WORK AND WERE ALSO PAID THE LABORER WAGE RATE. HOWEVER, THE RECORD INDICATES THAT ALL OF THE EMPLOYEES WHO WERE ALLEGEDLY UNDERPAID, WHILE HAVING DIFFERING DEGREES OF EXPERIENCE AND SKILL, DID PERFORM SOME FUNCTION NORMALLY PERFORMED BY JOURNEYMEN ELECTRICIANS OR APPRENTICES. SINCE NONE OF THE EMPLOYEES WERE REGISTERED IN AN APPROVED APPRENTICESHIP PROGRAM AND THEY DID PERFORM JOURNEYMEN WORK, WE CONCUR WITH THE DEPARTMENT OF LABOR'S VIEW THAT THE EMPLOYEES HAVE TO BE PAID THE JOURNEYMAN RATE. SEE B-200293-O.M., OCTOBER 16, 1980; B-189400 O.M., SEPTEMBER 23, 1977.

WE DO NOT BELIEVE THAT DEBARMENT OF BLACKHAWK IS WARRANTED, SINCE THE UNDERPAYMENT OF THE ABOVE-MENTIONED WORKERS WAS NOT THE RESULT OF A WILLFUL INTENT TO UNDERPAY THE WORKERS, BUT RATHER THE RESULT OF THE SUBCONTRACTOR'S BELIEF THAT, SINCE THE EMPLOYEES IN QUESTION DID NOT POSSESS THE SKILL OF JOURNEYMEN, THEY SHOULD NOT BE PAID AS SUCH. ALSO, WE DO NOT BELIEVE THAT EITHER THE CONTRACTOR, HUGHES AIRCRAFT CO., OR THE FIRST-TIER SUBCONTRACTOR, RUCK CORPORATION, SHOULD BE DEBARRED, SINCE THERE IS NO EVIDENCE INDICATING THAT EITHER PARTY PARTICIPATED IN OR CONTRIBUTED TO THE DISREGARD OF OBLIGATIONS TO EMPLOYEES WITHIN THE INTENT OF THE DAVIS-BACON ACT SO AS TO PROVIDE A BASIS FOR DEBARMENT. THE DEPARTMENT OF LABOR DOES NOT RECOMMEND DEBARMENT OF ANY OF THE PARTIES.

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