B-209979-OM, JAN 18, 1983

B-209979-OM, JAN 18, 1983

DIGEST: SUBCONTRACTOR WHO HAD FULL KNOWLEDGE OF STATUTORY AND CONTRACTUAL RESPONSIBILITIES UNDER DAVIS-BACON ACT AND NEVERTHELESS DISREGARDED THOSE OBLIGATIONS BY UNDERPAYMENT TO ITS EMPLOYEES AND BY FALSIFICATION OF CERTIFIED PAYROLLS HAS NOT SHOWN GOOD FAITH IN COMPLYING WITH ACT AND CONTRACTUAL PROVISIONS. THEREFORE, NAME OF SUBCONTRACTOR AND ITS PRESIDENT ARE FOR INCLUSION ON DEBARRED BIDDER LIST.

THE COMPTROLLER GENERAL:

WE ARE FORWARDING THE FILE PERTAINING TO THE APPARENT VIOLATIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT, 40 U.S.C. 327 ET SEQ., AND THE COPELAND ACT, 40 U.S.C. 276C, BY MBS MAINTENANCE, ASBURY PARK, NEW JERSEY, WHICH PERFORMED WORK UNDER ARMY CORPS OF ENGINEERS CONTRACT NO. DACA51-79-C-0022 AT PICATINNY ARSENAL, DOVER, NEW JERSEY.

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 $7,118.07 ON DEPOSIT HERE TO THE 5 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. MBS MAINTENANCE, INC., AND MICHAEL LEWKOWICZ, PRESIDENT, ARE BEING NOTIFIED OF DEBARMENT FOR VIOLATION OF THE DAVIS-BACON ACT, 40 U.S.C. SEC. 276A (1976), IN ACCORDANCE WITH THE ATTACHED LETTER AND FINDING (COPIES), AND THESE NAMES SHOULD BE INCLUDED ON THE NEXT PUBLISHED LIST OF INELIGIBLES.

THE FUNDS ($7,118.07) ON DEPOSIT WITH YOUR OFFICE FOR DAVIS-BACON ACT ($6,676.71), CONTRACT WORK HOURS AND SAFETY STANDARDS ACT ($400.36) AND COPELAND ACT ($30) VIOLATIONS SHOULD BE DISBURSED TO THE AGGRIEVED WORKERS IN ACCORDANCE WITH ESTABLISHED PROCEDURES.

FINDING

IN THE MATTER OF MBS MAINTENANCE, INC., AND MICHAEL LEWKOWICZ, PRESIDENT.

SECTION 1(A) OF THE DAVIS-BACON ACT OF AUGUST 30, 1935, 49 STAT. 1011, 40 U.S.C. SEC. 276A (1976), PROVIDES IN PART THAT -

"(A) THE ADVERTISED SPECIFICATIONS FOR EVERY CONTRACT IN EXCESS OF $2,000, TO WHICH THE UNITED STATES *** IS A PARTY, FOR CONSTRUCTION, ALTERATION, AND/OR REPAIR, INCLUDING PAINTING AND DECORATING, OF PUBLIC BUILDINGS OR PUBLIC WORKS OF THE UNITED STATES *** AND WHICH REQUIRES OR INVOLVES THE EMPLOYMENT OF MECHANICS AND/OR LABORERS SHALL CONTAIN A PROVISION STATING THE MINIMUM WAGES TO BE PAID VARIOUS CLASSES OF LABORERS AND MECHANICS *** AND EVERY CONTRACT BASED UPON THESE SPECIFICATIONS SHALL CONTAIN A STIPULATION THAT THE CONTRACTOR OR HIS SUBCONTRACTOR SHALL PAY ALL MECHANICS AND LABORERS EMPLOYED DIRECTLY UPON THE SITE OF THE WORK, UNCONDITIONALLY AND NOT LESS OFTEN THAN ONCE A WEEK, AND WITHOUT SUBSEQUENT DEDUCTION OR REBATE ON ANY ACCOUNT, THE FULL AMOUNTS ACCRUED AT TIME OF PAYMENT, COMPUTED AT WAGE RATES NOT LESS THAN THOSE STATED IN THE ADVERTISED SPECIFICATIONS, REGARDLESS OF ANY CONTRACTUAL RELATIONSHIP WHICH MAY BE ALLEGED TO EXIST BETWEEN THE CONTRACTOR OR SUBCONTRACTOR AND SUCH LABORERS AND MECHANICS ***"

SECTION 3(A) OF THE ACT PROVIDES THAT -

"*** THE COMPTROLLER GENERAL OF THE UNITED STATES IS FURTHER AUTHORIZED AND IS DIRECTED TO DISTRIBUTE A LIST TO ALL DEPARTMENTS OF THE GOVERNMENT GIVING THE NAMES OF PERSONS OR FIRMS WHOM HE HAS FOUND TO HAVE DISREGARDED THEIR OBLIGATIONS TO EMPLOYEES AND SUBCONTRACTORS. CONTRACT SHALL BE AWARDED TO THE PERSONS OR FIRMS APPEARING ON THIS LIST OR TO ANY FIRM, CORPORATION, PARTNERSHIP, OR ASSOCIATION IN WHICH SUCH PERSONS OR FIRMS HAVE AN INTEREST UNTIL THREE YEARS HAVE ELAPSED FROM THE DATE OF PUBLICATION OF THE LIST CONTAINING THE NAMES OF SUCH PERSONS OR FIRMS."

CONTRACT NO. DACA51-79-C-0072, IN EXCESS OF $2,000, FOR THE CONSTRUCTION OF THE PHYSICAL SCIENCE LABORATORY AT THE PICATINNY ARSENAL, DOVER, NEW JERSEY, WAS AWARDED BY THE DEPARTMENT OF THE ARMY TO JUNO CONSTRUCTION CORP. THE CONTRACT CONTAINED THE PROVISIONS AND STIPULATIONS REQUIRED BY SECTION 1 OF THE DAVIS-BACON ACT.

ELECTRICAL WORK WAS SUBCONTRACTED TO MBS MAINTENANCE, INC. THE PRESIDENT OF THE SUBCONTRACTOR SIGNED AN ACKNOWLEDGEMENT THAT THE DAVIS BACON ACT PROVISIONS OF THE PRIME CONTRACT WERE INCORPORATED INTO THE SUBCONTRACT.

AN INVESTIGATION CONDUCTED BY THE DEPARTMENT OF THE ARMY DISCLOSED THAT THE SUBCONTRACTOR, HAVING FULL KNOWLEDGE OF ITS STATUTORY AND CONTRACTUAL RESPONSIBILITIES, SUBMITTED CERTIFIED PAYROLLS TO THE CONTRACTING AGENCY CONTAINING INFORMATION SIMULATING COMPLIANCE WITH THE DAVIS-BACON ACT WHEN IN FACT IT DISREGARDED ITS OBLIGATION TO EMPLOYEES IN THAT FIVE EMPLOYEES WERE UNDERPAID $6,676.71 UNDER THE ACT.

THE DEPUTY ADMINISTRATOR, WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR, NOTIFIED MR. MICHAEL LEWKOWICZ, BY LETTER, OF THE NATURE AND EXTENT OF THE LABOR STANDARDS VIOLATIONS AND AFFORDED HIM AN OPPORTUNITY TO REBUT THE ALLEGATIONS. SINCE IT APPEARED FROM MR. LEWKOWICZ'S REPLY LETTER THAT HE DISAGREED WITH THE INVESTIGATION FINDINGS, THE DEPARTMENT OF LABOR, BY LETTER, OFFERED MR. LEWKOWICZ THE OPPORTUNITY OF A HEARING UNDER SECTION 5.11(B) OF THE DEPARTMENT OF LABOR'S REGULATIONS (29 C.F.R. SEC. 5.11(B) (1981)). HOWEVER, THE LETTER WAS RETURNED BY THE POST OFFICE DEPARTMENT AS "UNCLAIMED." FURTHER INVESTIGATION BY THE DEPARTMENT OF LABOR DISCLOSED THAT THE SUBCONTRACTOR HAD VACATED ITS LAST KNOWN ADDRESS WITHOUT LEAVING A FORWARDING ADDRESS.

ON THE BASIS OF THE EXISTING RECORD, PARTICULARLY IN LIGHT OF THE FALSIFIED PAYROLLS, WE CONCLUDE THAT GOOD FAITH WAS NOT SHOWN IN COMPLYING WITH THE ACT AND THE CONTRACTUAL PROVISIONS. BOTH THE DEPARTMENT OF THE ARMY AND THE DEPARTMENT OF LABOR HAVE RECOMMENDED THE IMPOSITION OF DEBARMENT.

WE THEREFORE FIND THAT MBS MAINTENANCE, INC., AND MICHAEL LEWKOWICZ HAVE DISREGARDED THEIR "OBLIGATIONS TO EMPLOYEES" WITHIN THE MEANING OF SECTION 3(A) OF THE DAVIS-BACON ACT. ACCORDINGLY, THESE NAMES WILL BE INCLUDED ON A LIST FOR DISTRIBUTION TO ALL AGENCIES OF THE GOVERNMENT AND, PURSUANT TO STATUTORY REQUIREMENTS, NO CONTRACT SHALL BE AWARDED TO THEM OR TO ANY FIRM, CORPORATION, PARTNERSHIP, OR ASSOCIATION IN WHICH THEY HAVE AN INTEREST UNTIL 3 YEARS HAVE ELAPSED FROM THE DATE OF PUBLICATION OF SUCH LIST.