B-196684.OM, L/M, MAR 17, 1980

B-196684.OM, L/M, MAR 17, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

HERE IS THE FILE PERTAINING TO THE APPARENT VIOLATIONS OF THE DAVIS BACON ACT, 40 U.S.C. 276A, BY LONGFIELD CONTRACTING CORPORATION PERFORMING WORK UNDER DEPARTMENT OF AGRICULTURE, CONTRACT NO. 12-14 0605-192 AT ANIMAL DISEASE CENTER, SUFFOLK COUNTY, NEW YORK.

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 $9,464.16 ON DEPOSIT HERE TO THE 35 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 MS. MARCIA BROWN ON EXTENSION 53218.

INDORSEMENT

DIRECTOR, CLAIMS DIVISION

RETURNED. THERE IS SUFFICIENT EVIDENCE OF RECORD TO ESTABLISH THAT THE SUBCONTRACTOR, LONGFIELD CONTRACTING CORPORATION, DID NOT PAY FRINGE BENEFITS FOR CERTAIN OF ITS EMPLOYEES. WE NOTE, HOWEVER, THAT WHILE TWO OF THESE EMPLOYEES WERE NOT UNION MEMBERS AND, THEREFORE, SHOULD HAVE BEEN PAID DIRECTLY, THE REST OF THE EMPLOYEES WERE UNION MEMBERS WHOSE FRINGE BENEFIT PAYMENTS WOULD ORDINARILY BE PAID TO A TRUSTEE OR THIRD PARTY PURSUANT TO A FUND, PLAN, OR PROGRAM. HOWEVER, UNDER SECTION 1(B) OF THE DAVIS-BACON ACT, 40 U.S.C. SEC. 276A, AS AMENDED BY THE ACT OF JULY 2, 1964, PUB. L. 88-349, 78 STAT. 238, AN EMPLOYER MAY DISCHARGE HIS FRINGE BENEFIT OBLIGATIONS BY EITHER PAYING INTO A FRINGE BENEFIT FUND OR MAKING CASH PAYMENTS DIRECTLY TO THE EMPLOYEE AND WE HAVE HELD THAT UNDER THE ACT NOT ONLY IS THE COMPTROLLER GENERAL AUTHORIZED TO PAY DIRECTLY TO THE EMPLOYEES BUT HE IS ALSO AUTHORIZED TO PAY DIRECTLY INTO THE FRINGE BENEFIT FUNDS. SEE B-193615-O.M., MAY 7, 1979. IN THE PRESENT CASE, HOWEVER, SINCE THERE HAVE BEEN NO CLAIMS BY TRUSTEES OF THE FUNDS IN QUESTION, WE ARE OF THE VIEW THAT IT WOULD BE PROPER TO DISBURSE THE FUNDS DIRECTLY TO THE EMPLOYEES AS SUGGESTED BY THE ADMINISTRATIVE LAW JUDGE. THEREFORE, THE FUNDS ON DEPOSIT WITH YOUR OFFICE MAY BE DISBURSED TO THE AGGRIEVED EMPLOYEES IN ACCORDANCE WITH ESTABLISHED PROCEDURES.

DUE TO THE FACT THAT THE VIOLATIONS APPEAR TO HAVE BEEN, IN PART AT LEAST, THE RESULT OF THE SUBCONTRACTOR'S INABILITY TO MEET ITS FINANCIAL OBLIGATIONS AND, MORE IMPORTANTLY, THE FACT THAT INSTITUTION OF DEBARMENT PROCEEDINGS AT THIS LATE DATE WOULD UNDULY DELAY THE REIMBURSEMENT OF THE EMPLOYEES, WE DO NOT BELIEVE DEBARMENT IS WARRANTED. WE ALSO NOTE THAT NEITHER THE AGENCY NOR THE DEPARTMENT OF LABOR HAS RECOMMENDED DEBARMENT.