Date: July 6, 1994
CASE NO. 89-DBA-115
IN THE MATTER OF
Proposed debarment for labor
standards violations by:
COSPER CONSTRUCTION COMPANY
Contractor
and
BILLY M. COSPER, JR.
Owner
With respect to laborers and
mechanics employed by the
contractor under Department of
the Army Contract No. DACA-85-C-0119,
Fort McClellan, Alabama
ORDER DISMISSING COMPLAINT ON SUMMARY DECISION
Counsel for the respondents named herein, Cosper Construction
Company and Billy M. Cosper, Jr., move for summary decision in this
proceeding which involves the proposed debarment of respondents
pursuant to the Davis-Bacon Act and the regulations promulgated
thereunder, more particularly, 40 U.S.C. § 276(a)-(2) and
Title 29 of the Code of Federal Regulations, Parts 5 and 6. In
support of this motion, respondents alleged that this action has
been
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prosecuted against the wrong respondents; that there is no genuine
issue of material of fact and that respondents are entitled to
judgment as a matter of law.
In support of this motion, respondents have attached the
affidavits of Billy M. Cosper, Sr., and his son Billy M. Cosper,
Jr. The affidavit of Billy M. Cosper, Sr., states in pertinent
part:
From...the late 1970's until July 6, 1987, I operated
Cosper Construction Company as a sole proprietorship,
which was solely owned and solely run by me.
In the summer of 1985, while I was operating a sole
proprietorship, I, doing business as Cosper Construction
Company, submitted a bid...for contract number DACA 01-
85-C-0119, which was better known as the Range
Improvements Job. On October 21, 1985, I was awarded the
contract to perform the Range Improvements Job.
...I, and the employees and subcontractors hired by me,
performed the above-mentioned contract on the Range
Improvements Job. The job was completed in April of
1987. During the progress of the job, I, as owner of
Cosper Construction Company, made all decisions
concerning the method and amount to pay the workers that
I employed on the Range Improvements Job. My son, Billy
M. Cosper, Jr., had no input in these employment
decisions.
...I, as the sole incorporator, formed Cosper
Construction Inc. on July 9, 1987. Subsequent to the
formation of Cosper Construction, Inc., I transferred
one-third of the capital stock to my son, Billy M.
Cosper, Jr., on July 31, 1987. After July 9, 1987, all
my construction business was transacted through Cosper
Construction Inc.
On March 21, 1991, I sold my remaining two-thirds
interest in Cosper Construction, Inc. to my son, Billy M.
Cosper, Jr. Since March 21, 1991, I have had no
affiliation with Cosper Construction, Inc. I am no longer
employed in the commercial construction business.
My son, Billy M. Cosper, Jr., never owned any ownership
interest in Cosper Construction Company.
The affidavit of Billy M. Cosper, Jr. states in pertinent
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part:
I am the president and sole stockholder of Cosper
Construction, Inc.
During 1985, 1986 and the first part of 1987, I was
employed by my father, doing business as Cosper
Construction Company. While I did work on the Range
Improvements Job...I never made any decisions concerning
the method or amount to be paid to the other workers
employed by my father on the Range Improvements Job. I
have no knowledge of any special arrangements that my
father may have had with any employee or subcontractor on
the Range Improvements Job. The Range Improvements Job
was completed in April 1987.
Several months after the Range Improvements Job was
completed, my father formed Cosper Construction,
Inc....After this company was formed, my
father,...transferred one-third of the capital stock to
me on July 31, 1987. At that time, I became an Officer
of Cosper Construction, Inc. On March 23, 1991, I
acquired my father's remaining two-thirds interest in the
capital stock of Cosper Construction, Inc. Since that
time (March 23, 1991), I have been the sole shareholder
and President of Cosper Construction, Inc.
Other than the trade name used by my father in the late
1970's and early 1980's, I know of no company operating
under the name of Cosper Construction Company.
The Department of Labor's response to this motion is
unsupported by any proof in the form of an affidavit or otherwise.
The argument advanced in this response in opposition to the motion
is:
The sole basis upon which respondent rests its Motion for
Summary Decision is that the "action has been prosecuted
against the wrong Respondents". Respondents submit two
affidavits to support their contention that Billy M.
Cosper, Jr. should be dismissed as a respondent, but
introduce no evidence to indicate that Cosper
Construction Company is not a proper respondent. The
Department of Labor contends that Cosper Construction
Company is a proper respondent and that Cosper
Construction Company did in fact violate the Davis Bacon
Act. This constitutes a material issue of fact that
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would refute summary decision in favor of respondents.
This response concedes that the individual respondent, Billy
M. Cosper, Jr., is not a proper party respondent in this
proceeding. Since the proof offered in support of the motion
affirmatively shows that respondent, Billy M. Cosper, Jr., did not
participate in the activities which are the subject of this
disbarment proceeding and since the Department of Labor in its
response to the pending motion do not offer any proof to the
contrary, it is clearly appropriate to dismiss Billy M. Cosper, Jr.
as a party in this proceeding.
The remaining issue is whether it is also appropriate to
dismiss Cosper Construction Company as a party in this proceeding.
The unrefuted proof shows that Cosper Construction Company is not
a legal entity but merely a name under which an individual, Billy
M. Cosper, Sr., did business during the time the alleged violations
of the Davis Bacon Act which are the basis for this debarment
proceeding are claimed to have taken place. Since the Solicitor
has not sought to amend the complaint to name Billy M. Cosper, Sr.,
who did business as Cosper Construction Company during the relevant
time periods as a party respondent in this proceeding nor did the
Solicitor seek to name Cosper Construction, Inc. as a successor-in-
interest to the business which was operated under the trade name
Cosper Construction Company, it does not appear that any useful
purpose would be served by proceeding against this non-entity.
Moreover, as pointed out in respondents reply, Cosper Construction
Company, which the proof shows is not a legal entity, does not come
within the definition of a "person" defined in 29 C.F.R. §
98.105(n) that can be subject to debarment. It is therefore found
that Cosper Construction Company is not a proper respondent in this
proceeding. Since it has been determined that neither of the named
respondents are proper parties, it is appropriate to dismiss the
complaint.
ORDER
IT IS THEREFORE ORDERED that the complaint against Cosper
Construction Company and Billy M. Cosper, Jr. be dismissed.
___________________________________
QUENTIN P. MCCOLGIN
ADMINISTRATIVE LAW JUDGE
Metairie, Louisiana
QPMC:daq
