B-208068-OM, DEC 16, 1982

B-208068-OM, DEC 16, 1982

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, BY ELECTRICAL CONSTRUCTORS OF AMERICA, INC., WHICH PERFORMED WORK UNDER FEDERAL AVIATION ADMINISTRATION, CONTRACT NO. DOT-FA-76SO-9563 AT W. B. HARTSFIELD ATLANTA INTERNATIONAL AIRPORT, GEORGIA.

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 $1,040.65 ON DEPOSIT, TO THE UNDERPAID EMPLOYEES. 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. PAT BUNDY ON EXTENSION 53218.

INDORSEMENT

ASSOCIATE DIRECTOR, AFMD-CLAIMS GROUP

RETURNED. ON OCTOBER 28, 1975, THE FEDERAL AVIATION ADMINISTRATION (FAA) AWARDED CONTRACT NO. DOT-FA7650-9563 FOR THE CONSTRUCTION OF AN UNDERGROUND CABLE SYSTEM AT THE W. B. HARTSFIELD ATLANTA INTERNATIONAL AIRPORT, ATLANTA, GEORGIA, TO ELECTRICAL CONSTRUCTORS OF AMERICA, INC. (ELCON).

AN INVESTIGATION BY THE DEPARTMENT OF LABOR (DOL) REVEALED THAT ELCON WAS NOT PAYING SUFFICIENT FRINGE BENEFITS (HEALTH AND WELFARE, PENSIONS AND APPRENTICESHIP TRAINING) FOR ITS EMPLOYEES. ELCON DID, HOWEVER, PAY ALL OF ITS EMPLOYEES THE REQUIRED BASIC WAGE RATE. ELCON HAD A STATE APPROVED APPRENTICESHIP PROGRAM, A GROUP MEDICAL INSURANCE PROGRAM AND PAID-FOR HOLIDAYS AND VACATIONS FOR CERTAIN EMPLOYEES. MOST, IF NOT ALL, OF THE UNDERPAYMENTS WERE THE RESULT OF ADMINISTRATIVE OR BOOKKEEPING ERRORS, RATHER THAN A WILLFUL INTENT TO UNDERPAY ITS WORKERS. FOR EXAMPLE, ELCON CLAIMED ADMINISTRATIVE EXPENSES FOR THE ADMINISTRATION OF ITS APPRENTICESHIP PROGRAM WHICH IS NOT PERMITTED BY DOL, WHO OVERSEES APPRENTICESHIP PROGRAMS ON FEDERAL CONSTRUCTION PROJECTS. ALSO, DOL DISPUTED ELCON'S METHOD OF COMPUTING ITS INSURANCE CONTRIBUTIONS FOR ITS EMPLOYEES ON THE PROJECT. ULTIMATELY, DOL REACHED AN ACCOMMODATION WITH ELCON WHEREBY ELCON'S INSURANCE CONTRIBUTIONS, PAYMENTS FOR THE APPRENTICESHIP PROGRAM AND THE HOLIDAY AND VACATION PAYMENTS WERE CREDITED TOWARDS THE REDUCTION OF THE FRINGE BENEFITS OWED. ELCON MADE RESTITUTION TO THOSE EMPLOYEES THAT IT COULD LOCATE AND AN AMOUNT ($1,040.65) SUFFICIENT TO REIMBURSE THOSE EMPLOYEES THAT IT COULD NOT LOCATE WAS FORWARDED TO YOUR OFFICE. ON THE BASIS OF THE RECORD, WE WOULD HAVE NO OBJECTION TO THE DISBURSAL OF THE $1,040.65 TO THE AGGRIEVED EMPLOYEES IN ACCORDANCE WITH ESTABLISHED PROCEDURES. SEE B-201217-O.M., JANUARY 21, 1981.

WE DO NOT BELIEVE THAT DEBARMENT SANCTIONS SHOULD BE IMPOSED SINCE, AS POINTED OUT ABOVE, MOST OF THE VIOLATIONS WERE OF AN ADMINISTRATIVE OR BOOKKEEPING NATURE AND WERE NOT OF SUCH A WILLFUL NATURE AS TO WARRANT DEBARMENT. SEE B-188645-O.M., APRIL 11, 1977. MOREOVER, WE NOTE THAT IT HAS BEEN IN EXCESS OF 7 YEARS SINCE THE VIOLATIONS OCCURRED. IF WE WERE TO INITIATE DEBARMENT PROCEEDINGS AT THIS TIME, DUE PROCESS WOULD HAVE TO BE ACCORDED ELCON. 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-200299-O.M., OCTOBER 7, 1980. NEITHER DOL NOR FAA RECOMMENDS DEBARMENT.