ARB CASE NO. 98-164
ALJ CASE NO. 96-DBA-33
DATE: June 8, 2001
In the Matter of:
Disputes concerning the payment of
prevailing wage rates and proposed
debarment for labor standards
violations by:
THOMAS AND SONS BUILDING
CONTRACTORS, Inc., a corporation and
JAMES H. THOMAS, individually
and as a corporate officer
With respect to laborers and mechanics
employed on Contract No. N62472-90-C-
0410 for the Wilmington, Delaware Naval
Reserve Center and Contract No. F36629-
93-C-0007 for the Pittsburgh Air National
Guard
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Petitioners:
James H. Thomas, President, Thomas and Sons Building Contractors, Inc.,
Lakehurst, New Jersey
For the Respondent:
Carol Arnold, Esq., Paul H. Frieden, Esq., Steven J. Mandel, Esq., U.S. Department of Labor, Washington, D.C.
ORDER DENYING RECONSIDERATION
In July 1998, a Labor Department Administrative Law Judge (ALJ) issued a decision finding that the Respondents in this enforcement action (Thomas and Sons Building Contractors, Inc., and its principal, James H. Thomas collectively, "Thomas and Sons") had misclassified and underpaid workers on projects subject to the prevailing wage requirements of the Davis-Bacon Act, 40 U.S.C.A. §276a (West 1986). The ALJ recommended that they be debarred from further federal contracts. Thomas and Sons Bldg. Contractors, Inc., ALJ No. 96-DBA-33 (July 30, 1998).
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Thomas and Sons appealed the ALJ's decision to the Administrative Review Board (ARB). The appeal did not challenge the merits of the ALJ's liability finding, but instead contested the Labor Department's jurisdiction to prosecute the wage underpayment claim while the company was pursuing a monetary claim against the contracting agencies. In a Final Decision and Order, we held that "because the question presented [in the wage underpayment prosecution] . . . arises out of the labor standards provisions of the contracts, it is not subject to the general contract disputes clause of the procurement contracts[,]" and therefore the ALJ and this Board properly had jurisdiction over the case. We denied the petition for review, affirmed the ALJ's earlier decision, and ordered that the Respondents' names be forwarded to the Comptroller General to be placed on the debarment list. Thomas and Sons Bldg. Contractors, Inc., ARB No. 98-164, ALJ No. 96-DBA-33 (ARB Oct. 19, 1999) ("October 1999 D&O").
On April 3, 2000 more than 5 months after the ARB's decision Thomas and Sons submitted a request that we reconsider the October 1999 D&O. The argument advanced in the request for reconsideration varied only slightly from the position taken in the prior case, with Thomas and Sons asserting that the dispute was really a contract matter to be decided solely by the Armed Services Board of Contract Appeals (ASBCA) and not a labor standards matter to be decided by the Labor Department.
In response to the reconsideration request, we issued a Notice soliciting the views of the parties on the authority of the ARB to reconsider its decisions under the Davis-Bacon Act. We posed four questions:
1. Whether the ARB has the authority under the Davis-Bacon Act generally to reconsider one of its final decisions and particularly an enforcement action involving debarment (referencing Macktal v. Brown & Root, Inc., ARB Nos. 98-112/112A, ALJ No. 86-ERA-23 (ARB Nov. 20, 1998) and Jones v. EG&G Defense Materials, Inc., ARB No. 97-129, ALJ No. 95-CAA-3 (ARB Nov. 24, 1998))?
2. If the ARB has such authority, what time limits apply to the motion for reconsideration?
3. If the ARB has such authority, what is the scope of that authority in reviewing its final decisions?
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4. If the ARB were to reconsider and reverse, does the ARB have the authority to direct that the Comptroller General remove Respondents' names from the list of ineligible bidders?
Notice, slip op. at 1- 2. Both parties have submitted responses to the Notice, although Thomas and Sons' brief primarily restates the claim that the matter is solely a contract dispute to be decided by the ASBCA and that the Labor Department lacks jurisdiction over the case.
1 Including Belville Mining Co. v. United States, 999 F.2d 989 (6th Cir. 1993); Dun & Bradstreet v. United States Postal Serv., 946 F.2d 189 (2d Cir. 1991); Gun South, Inc. v. Brady, 877 F.2d 858 (11th Cir. 1989); Dawson v. Merit Sys. Protection Bd., 712 F.2d 264 (7th Cir. 1983); Trujillo v. General Elec. Co., 621 F.2d 1084 (10th Cir. 1980); Mazaleski v. Treusdell, 562 F.2d 701 (D.C. Cir. 1977); Ideal Basic Indus., Inc. v. Morton, 542 F.2d 1364 (9th 1976); Bookman v. United States, 453 F.2d 1263 (Ct. Cl. 1972); and Glass, Molders, Pottery, Plastics and Allied Workers Int'l Union, AFL-CIO v. Excelsior Foundry Co., 56 F.3d 844 (7th Cir. 1995).
2 The time limitation for filing a rehearing petition under Rule 40(a)(1) is extended to 45 days in cases in which the United States is a party; however, the Administrator observes that, per the Advisory Committee notes to the Rule, the reason for the longer time period allowed in civil actions involving the United States is to provide the Solicitor General an opportunity to review the case. This rationale does not apply to administrative proceedings before this Board under the Davis-Bacon Act; thus, the Administrator recommends that the Board use the "default" 14-day time period.
3The debarment provisions of the two statutes are slightly different. Under the Davis-Bacon Act debarment section, 40 U.S.C.A. §276a-2(b),
the Comptroller General of the United States is . . . 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. No 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. . . .
The debarment provision of the Service Contract Act, 40 U.S.C.A. §354(a), provides that
The Comptroller General is directed to distribute a list to all agencies of the Government giving the names of persons or firms that the Federal agencies or the Secretary [of Labor] have found to have violated this chapter.. . . [N]o contract of the United States shall be awarded to the persons or firms appearing on the list or to any firm, corporation, partnership or association in which such persons or firms have a substantial interest until three years have elapsed from the date of publication of the list containing the name of such persons for firms.
4 Of the eight DBA and SCA decisions cited by the Administrator in which the Board or its predecessors reconsidered an earlier decision, only two were cases in which a contractor had been debarred HLJ Management and Cindy Monahan (both under the SCA). Five of the cases involved interpretive questions that were solely within the province of the Secretary of Labor, and therefore did not raise possible conflicts between the Board's authority and the responsibilities of other Federal officials such as the Comptroller General. It is entirely possible that the question of the Board's reconsideration authority under these non-debarment cases may follow a different analysis from the analysis used in debarment cases.