The violations, as uncovered during a 1991
investigation conducted by the Wage and Hour Division, disclosed $40,922.18 in prevailing
wage and
fringe benefit underpayments due to 158 JJS employees. Statement of The Administrator (SA) at
3.
At the March, 1992 closing conference held by the Wage and Hour compliance officer and
attended
by Brenda Chouinard, Petitioners agreed to pay this amount by May 25, 1992 and to forward to
Wage and Hour a copy of the back wage receipts for each employee by June 1, 1992. Id .
See also Complainant's Exhibit (CX)11. In addition, Petitioners agreed to calculate and
pay
additional back wages due for ongoing violations during the period from January 17, 1992
through
February 28, 1992. While the initial back wage liability was paid, Petitioners failed to comply
with
the other terms agreed to at the closing conference. As a result a follow-up Wage and Hour
investigation was conducted in December of 1992.
The follow-up investigation revealed an additional $13,918.33 in
back wage liability which
Petitioners then agreed to pay, in equal installments on April 1, 1993 and May 1, 1993. SA at 4.
Once again, Petitioners also agreed to submit proof of these payments to Wage and Hour by the
end
of May, 1993. Although the payments were made as promised, the proof of payment was not
submitted, despite Wage and Hour's attempts to obtain full compliance with the agreed upon
terms,
until July 30, 1993.
As a result of the difficulty in obtaining compliance following the
seventh and eighth
investigations of these Petitioners, the Administrator of the Wage and Hour Division filed an
administrative complaint against them on October 6, 1993. D. and O. at 1.
DISCUSSION
The regulations which define and control the analysis
of SCA debarment
determinations are found at 29 C.F.R. § 4.188. While such determinations were
previously
subjectively reviewed based upon a set of factors set out in Washington Moving and Storage
Co. , Case No. 74-SCA-168, Sec. Dec. and Ord., March 12, 1974, slip op. at 3-4, they are
now
governed by a "strict hierarchy of the importance which attaches to each of the
Washington
Moving and Storage factors." Elaine's Cleaning Service , BSCA Case No.
92-07
(Aug. 13, 1992), slip op. at 3. Moreover, the standards contained in 29 C.F.R. § 4.188 and
the hierarchical interpretation of them have been validated by the courts as a sound and
permissible
interpretation of the SCA statutory debarment authority under 41 U.S.C. § 354(a). See,
e.g. , A to Z Maintenance Corp. v. Dole , 710 F.Supp. 853, (D.D.C. 1989).
Under the initial part of the three-phased analysis which must be made under 29 C.F.R.
§ 4.188, a condition precedent to relief from debarment is that nay violation must not be
willful,
deliberate or of an aigrette nature or the result of culpable conduct. If any of these factors are
present, debarment cannot be recommended. 29 C.F.R. § 4.188(b)(3)(I) contains Part one
of
the test. It reads, in pertinent part, as follows:
[W]here the respondent's conduct in causing or permitting violations of the
Service Contract Act provisions of the contract is willful, deliberate or of an
aggravated nature or where the violations are a result of a culpable conduct
such as a culpable neglect to ascertain whether practices are in violation,
culpable disregard of whether they were in violation or not, . . . . relief from
debarment cannot be in order.
The second phase of the test lists prerequisites to relief and include,
inter alia , a good
compliance history under the Act. Part three, of the test, the provision which is finally
determinative
on the question of unusual circumstances, lists additional factors which are to be weighed and
considered, but only if the mandatory conditions set out in Parts one and two have been satisfied.
Under the regulations and the factual circumstances presented by the
record in this case, the
ALJ's analysis and legal conclusions were a proper application of this "particularly
unforgiving
provision of a demanding statute." A to Z Maintenance Corp. , supra, at 855. As
the
Board of Service Contract Appeals previously noted, "[t]he undeniable Congressional
purpose
behind the 1972 amendments to the debarment section was to limit the Secretary of Labor's
discretion
[as delegated to this Board -- see fn. 1, supra ,] to relieve violators from federal
contracting
ineligibility." Elaine's Cleaning Service, supra , slip op. at 4. "The clear
language of the SCA, administrative law precedent, and the regulations mandate that relief from
debarment after a finding of violations is to be the exception, rather than the rule."
Id.
at 5. Thus, contrary to Petitioners' assertion, the ALJ was correct in finding that his discretion
to
consider the "unusual circumstances" allegedly presented by this case was limited.
The
ALJ's discretion was further and properly limited in this case because of the finding that these
Petitioners had wilfully violated the Act D. and O. at 9, and had "engaged in repeated
violations," constituting "culpable neglect" which, pursuant to the Part one and
two
of the analysis set forth above, precludes the Part three "unusual circumstances"
analysis
from even being made.3
Additionally, we find the ALJ's more specific conclusions rejecting
Petitioners' claims to be
supported by a preponderance of the evidence.4 These factors, and in particular, Petitioners' history of repeated violation of the
SCA
mandate no debarment relief under 29 C.F.R. § 4.188(b)(3).
Finally, a central component of Petitioners' position on review is that
the ALJ abused his
discretion, "by ignoring the evidence before him, and basing his findings solely on the
testimony
of Collette Hanson (Petitioners' former payroll and human services administrator) . . . ."
PR
at 5. First, a judge's evaluations of a witnesses' credibility should be overruled only where
clearly
erroneous. See, Raymond G. Richardson, Jr., Raymond G. Richardson Mail Service and Mar
Jean Richardson d/b/a J & M Trucking , BSCA Case No. 93-03 (May 6, 1994), slip op. at 6,
and
Executive Suite Services, Inc. , BSCA Case No. 92-26, (March 12, 1993), slip op. at 10
(and
cases cited therein). The ALJ's credibility determinations in this case are not clearly erroneous.
Additionally contrary to Petitioner's argument the ALJ's conclusions in this case were based
upon
substantially more than the testimony of one particular witness.
Accordingly, for all of the foregoing reasons, the D. and O. is
affirmed. The Petition for
Review is denied and Petitioners names shall be forwarded to the Comptroller General for
debarment
in accordance with 29 C.F.R. § 6.21(a).
BY ORDER OF THE BOARD.
DAVID A. O'BRIEN
Chair
KARL J. SANDSTROM
Member
JOYCE D. MILLER
Alternate Member
[ENDNOTES] 1
Secretary's Order 2-96 contains a comprehensive list of the statutes,
executive orders, and regulations
under which the Administrative Review Board now issues final agency decisions. A copy of the
final procedural
revisions to the regulations, 61 Fed. Reg. 19982, implementing this reorganization is also
attached.
2
3
4 de minimis " is properly rejected, under the hierarchical analysis scheme of
§ 4.188,
because of their history as a violator, D. & O. at 10. The same holds true with respect to the
contention that
alleged troubles receiving wage data information provides them with a bona fide or
genuine legal issue
in dispute in this case. Id. As multiple, repeat violators of the SCA, Petitioners simply
do not have a
good compliance history and the ALJ's recognition of this is beyond debate.
