B-205759.OM, MAR 26, 1982

B-205759.OM, MAR 26, 1982

DIGEST: WHILE IT IS RECOGNIZED THAT EVIDENCE OF RECORD IS SUFFICIENT TO SUPPORT DEBARMENT, WE CONCUR WITH THE DEPARTMENT OF LABOR'S VIEW THAT DEBARMENT SANCTIONS SHOULD NOT BE IMPOSED SINCE IT HAS BEEN IN EXCESS OF 6 YEARS SINCE VIOLATIONS OCCURRED. IF WE WERE TO INITIATE DEBARMENT PROCEEDINGS AT THIS TIME, DUE PROCESS WOULD HAVE TO BE ACCORDED CONTRACTOR. DUE PROCESS WOULD ENTAIL NOTICE AND HEARING WHICH WOULD FURTHER DELAY PAYMENT OF WORKERS. DEBARMENT OF SUBCONTRACTOR IS NOT WARRANTED SINCE VIOLATIONS WERE MINOR AND SUBCONTRACTOR MADE PROMPT RESTITUTION WHEN UNDERPAYMENTS WERE BROUGHT TO ITS ATTENTION.

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 H.A.LEWIS CONSTRUCTION CO., PRIME CONTRACTOR AND KEN WARREN CONSTRUCTION CO., SUBCONTRACTOR WHICH PERFORMED WORK UNDER CORPS OF ENGINEERS CONTRACT NO. DACW05-75-C 0063 AT LAKE ISABELLA, CALIFORNIA.

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 $2,500.00, WHICH WE HAVE ON DEPOSIT TO THE EIGHT AGGRIEVED WORKERS, ON A PRO RATA BASIS, IN ACCORDANCE WITH ESTABLISHED PROCEDURES. 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 CONSIDERATIONS AND INSTRUCTIONS.

FOR FURTHER INFORMATION, PLEASE CONTACT LARRY BOBIER ON EXTENSION 53218.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD-CLAIMS GROUP

RETURNED. THE EVIDENCE OF RECORD IS SUFFICIENT TO ESTABLISH THE FACT THAT THE WORKERS IN QUESTION WERE UNDERPAID.

WHILE WE RECOGNIZE THAT THE EVIDENCE OF RECORD IS PROBABLY SUFFICIENT TO SUPPORT THE CONCLUSION THAT THE WAGE UNDERPAYMENTS BY THE CONTRACTOR, H.A.LEWIS CONSTRUCTION COMPANY, WERE OF SUCH A WILLFUL NATURE AS TO WARRANT DEBARMENT, WE CONCUR WITH THE DEPARTMENT OF LABOR'S VIEW THAT DEBARMENT SANCTIONS SHOULD NOT BE IMPOSED. IT HAS BEEN IN EXCESS OF 6 YEARS SINCE THE VIOLATIONS OCCURRED. IF WE WERE TO INITIATE DEBARMENT PROCEEDINGS AT THIS TIME, DUE PROCESS WOULD HAVE TO BE ACCORDED THE CONTRACTOR. DUE PROCESS IN THIS CASE WOULD ENTAIL, AT THE MINIMUM, NOTICE AND SOME SORT OF HEARING WHICH WOULD FURTHER DELAY PAYMENT OF THE WORKERS. SEE B-193145-O.M., SEPTEMBER 25, 1981.

REGARDING THE SUBCONTRACTOR, KEN WARREN CONSTRUCTION COMPANY, THE EVIDENCE OF RECORD INDICATES THAT THE UNDERPAYMENTS WERE MINOR IN NATURE AND WHEN ADVISED OF THE UNDERPAYMENTS, THE SUBCONTRACTOR MADE PROMPT RESTITUTION. THEREFORE, WE DO NOT BELIEVE THAT DEBARMENT OF THE SUBCONTRACTOR IS WARRANTED.

THE FUNDS ON DEPOSIT WITH YOUR OFFICE SHOULD BE DISBURSED TO THE AGGRIEVED WORKERS ON A PRO RATA BASIS IN ACCORDANCE WITH ESTABLISHED PROCEDURES.