PHIL MAESTAS, 1982-SCA-9 (Under Sec'y July 31, 1986)
CCASE:
PHIL MAESTAS
DDATE:
19860731
TTEXT:
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[1] THE UNDER SECRETARY OF LABOR
WASHINGTON, D.C.
20210
In the Matter of
PHIL MAESTAS Case No. 82-SCA-9
Respondent
DECISION AND ORDER
Respondent has requested reconsideration of my conclusion that
there were no unusual circumstances which would warrant granting
him relief from the ineligible list sanction provided for in
Section 5(a) of the Service Contract Act of 1965, as amended, 41
U.S.C. 354(a) et seq. and that the case be remanded to the Office
of Administrative Law Judges for a hearing on the merits.
The petition for reconsideration represents that after the
initiation of this proceeding Respondent had retained Lee Medina,
Esq., an attorney employed by Colorado Rural Legal Services, to
represent him; that the attorney left Colorado Rural Legal Services
and that no other attorney or paralegal in that office handled the
correspondence relating to this matter; that Respondent was in
California and not receiving his mail; that he was personally
unaware of a potential proceeding and therefore did not answer or
defend the same. [1]
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[2] The record indicates that this proceeding was initiated by a
complaint filed in the Office of Administrative Law Judges (OALJ)
on October 13, 1981. An answer dated October 20, 1981 was filed on
October 26, 1981 with OALJ. It was signed by Respondent and
accompanied by a letter from Lee A. Medina, on the letterhead of
Colorado Rural Legal Services. The answer attributed any
underpayments to a misunderstanding of the contract provisions and
states that after being contacted by representatives of the
Department of Labor Respondent did comply with the wage
requirements. The answer also alleged that Respondent cooperated at
all times in correcting the misunderstanding and that at that time
there was no money due or owing to any employees. The allegations
in the complaint in Paragraph V charging Respondent with failing to
make and maintain and make available adequate and accurate records
was denied.
The answer concluded as follows:
In conclusion, the Respondent feels that this
misunderstanding was completely innocent and that he has
cooperated with the Department of Labor representatives
in repaying any amounts which were not paid to the
employees as a result of a misunderstanding. Because of
the above, the Respondent does not feel he should be
penalized and prevented from having future government
contracts because of the mistake which did occur.
On February 18, 1982 a Pre-Hearing Order was issued by
Everette [E.] Thomas, Associate Chief Judge, OALJ and on March
19, 1982 a Prehearing Statement was filed by the Government [2]
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[3] indicating that Respondent, between April 14, 1980 and June 2,
1980, had underpaid ten (10) employees a total sum of $1,912.18
under Contract Number 52-83-A7-0-18.
The record contains no other filings between March 19, 1982
and September 12, 1983 at which time the Government filed an
Amended Prehearing Statement and an Amended Complaint. The only
differences between the original complaint and pre-hearing
statement and the amended documents is the allegation that in
addition to the violations under Contract Number 52-83-A7-0-18,
Respondents similarly violated Contract Number 52-8A7-2-11 and the
combined total of underpayments was $2,418.92 to fifteen (15)
employees, rather than $1,912.18 to ten (10) employees.
Respondent failed to respond to the amended complaint for the
reasons stated in his petition for reconsideration. As a result a
decision was made by Administrative Law Judge (ALJ) James J. Butler
on January 22, 1984 finding Respondent in violation of the [] SCA
as alleged in the amended complaint. The ALJ made no
recommendation to relieve Respondent from the [ineligible] list
provision of the SCA. No exceptions to the ALJ's decision were
filed and, except for the issue of debarment under Section 5(a),
the ALJ's decision became final on February 17, 1984. [3]
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[4] The Respondent's name was sent to the Comptroller General on
September 19, 1984 to be placed on the official list of persons and
firms ineligible to be awarded Government contracts.
Upon receipt of Respondent's petition for reconsideration,
which on its face has merit, /FN1/ I issued an order requiring the
Government, within ten (10) days of receipt thereof, to show cause
why:
(1) Respondent's request for reconsideration should not
be granted.
(2) his name should not be removed from the Comptroller
General's list of ineligible contractors, and
(3) this case should not be remanded to the Office of
Administrative Law Judges for a hearing on the merits.
The order was issued on April 12, 1985 and no timely response
has been received.
In view of the Government's failure to timely respond to the
order to show cause and because there was a delay of almost
eighteen (18) months between the original complaint, to which
Respondent asserted a defense, and the amended complaint, I am
constrained by the basic requirements of due process, [4]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ The fact that Respondent answered the original complaint
indicates his intent to defend himself against the Government
charges and lends credence to the reasons given for not continuing
that defense. [4]
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[5] i.e. notice and the right to be heard, to grant Respondent's
request for reconsideration. Accordingly, the Comptroller General
is ordered to remove the name of Phil Maestas from the list of
persons and firms ineligible to be awarded Government contracts. It
is further ordered that this case be remanded to OALJ, for a
hearing on the issue of unusual circumstances.
[Ford B. Ford]
Under Secretary of Labor
Dated: July 31, 1986
Washington, D.C. [5]
