U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 97-068
ALJ CASE NO. 93-124
DATE: January 26, 1998
In the Matter of:
BHATT CONTRACTING
COMPANY, INC., Contractor
and
VIJAY A. BHATT
Individually and as President
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
This case arises under the Davis-Bacon and Related Acts (DBRA) and
29 C.F.R. Part 7. Bhatt Contracting Company, Inc. and Vijay Bhatt (collectively, Bhatt) filed
a petition pursuant to 29 C.F.R. §5.12(c) requesting removal of their names from the
debarred bidders' list. For the reasons set forth below the decision of the Acting
Administrator is reversed and the petition for reinstatement is granted.
BACKGROUND
In 1993, the Acting Administrator, Wage and Hour Division charged
Bhatt with certain violations of the DBRA. On August 14, 1995 those charges were settled
pursuant to the agreement of the parties. Consent Findings and Order of Dismissal (Consent
Order), August 14, 1995. Bhatt thereby voluntarily agreed to debarment under the DBRA and
29 C.F.R. §5.12(a)(1). The Consent Order stated that "[Bhatt] shall be ineligible
for a period not to exceed 3 years (from the date of publication by the Comptroller General
[Page 2]
of the name or names of said contractor or subcontractor on the ineligible list as provided [in
pertinent portions of §5.12]) to receive any contracts or subcontracts subject to any
statutes listed in §5.1." The Secretary's regulations state that the Acting
Administrator "promptly shall forward to the Comptroller General the name of any
respondent found to have committed aggravated or willful violations ...." 29 C.F.R.
§6.35.
On or about February 15, 1996, Bhatt requested removal from the
debarment list. Bhatt was informed approximately one month later that the Acting
Administrator had not promptly forwarded their names to the Comptroller General as required
by 29 C.F.R. §6.35. On April 5, 1996, Bhatt filed a petition with the Office Of
Administrative Law Judges arguing that the Acting Administrator should be prohibited from
placing them on the ineligible list. Bhatt argued that a de facto debarment had
already occurred because of the Acting Administrator's delay in forwarding their names to the
Comptroller General. The Acting Administrator responded by arguing that, despite the delay
in placing them on the ineligible list, Bhatt was not eligible for relief under §5.12(c) and
would not be eligible for relief from debarment until they have been on the list for six months.
The assigned Administrative Law Judge denied Bhatt's petition.
We reviewed the matter and issued a decision holding that the Acting
Administrator had breached a material duty of the consent decree by not promptly placing
Bhatt on the ineligible list. Bhatt Contracting Co. Inc., ARB Case No. 96-124
(ALJ Case No. 93-DBA-65), Sept. 6, 1996. We declined to grant Bhatt's requested remedy
of immediate removal from the ineligible list because the record did not contain sufficient
evidence to determine whether the requirements of 29 C.F.R. §5.12 (c) had been met.
We reviewed the standard remedies for the Acting Administrator's breach and found them to
be lacking. Bhatt at 4-5. Noting that Bhatt would soon be eligible to seek relief
from debarment, we ordered the Administrator to "commence immediately, and fully
complete within thirty days, the review required by [the regulations]. . . [and] issue the
decision as to whether Bhatt should be granted relief from debarment immediately upon receipt
of such a request." Bhatt at 5.
On November 27, 1996, Bhatt filed a request for early removal from the
ineligible list. Seventy-eight days later, in a letter dated February 13, 1997, the Acting
Administrator denied Bhatt's request. Bhatt now requests review of that determination.
[Page 3]
DISCUSSION
The regulation governing debarment under the Davis-Bacon Related Acts
is found at 29 C.F.R. §5.12(a)(1) and provides:
Whenever any contractor or subcontractor is found by the Secretary of
Labor to be in aggravated or willful violation of the labor standards
provisions . . ., such contractor or subcontractor or any firm,
corporation, partnership, or association in which such contractor or
subcontractor has a substantial interest shall be ineligible for a period not
to exceed 3 years (from the date of publication by the Comptroller
General of the name or names of said contractor or subcontractor on the
ineligible list . . .) to receive any contracts or subcontracts subject to any
of the statutes listed in [29 C.F.R.][sec] 5.1.
29 C.F.R. §5.12(c) provides that "[a]ny person or firm
debarred under §5.12(a)(1) may in writing request removal from the debarment list after
six months from the date of publication by the Comptroller General of such person or firm's
name on the ineligible list." When such a request is made the Administrator is required
to:
[E]xamine the facts and circumstances surrounding the violative
practices which caused the debarment, and issue a decision as to whether
or not such person or firm has demonstrated a current responsibility to
comply with the [DBRA] . . . . Among the factors to be considered in
reaching such a decision are the severity of the violations, the
contractor['s] . . . attitude towards compliance and the past compliance
history of the firm. In no case will such removal be effected unless the
Acting Administrator determines after an investigation that such person
or firm is in compliance with . . . other labor statutes providing wage
protection, such as . . . the Fair Labor Standards Act. If the request for
removal is denied, the person or firm may petition for review by the
Administrative Review Board pursuant to 29 C.F.R. part 7.
29 C.F.R. §5.12(c).
In our previous ruling in this case we ordered the Acting Administrator
"to issue the decision as to whether Bhatt shall be granted relief from debarment
immediately upon receipt of such a request." Bhatt at 5. The Acting
Administrator did not ask for additional time to comply with the Board's order, or indicate in
any way that the time frame set out therein was not realistic. Just as waiting to perform a
ministerial act for nine months cannot be held to be "prompt," waiting to issue a
decison for seventy-eight days is not "immediate." Our order to rule immediately
upon Bhatt's renewed request for relief from the ineligible list was not complied with by the
Acting Administrator.
[Page 4]
The Acting Administrator breached a material term of the consent decree
by not placing Bhatt on the ineligible list for nine months. The Acting Administrator then
failed to take advantage of the remedial nature of our prior ruling by not
"immediately" issuing a decision regarding Bhatt's renewed request for relief, or
seeking additional time within which to comply.
In exercising our discretion to hear and decide appeals, the Board
"shall consider, among other things, timeliness, the nature of the relief
sought, matters of undue hardship or injustice, or the public interest." 29
C.F.R.§7.1(c) (emphasis added). "The Board shall act as fully and finally as
might the Secretary of Labor concerning such matters." 29 C.F.R. §7.1(d). For
the reasons set out above, we reject the untimely decision of the Acting Administrator. Bhatt's
November 27, 1996, "Renewed Petition for Reinstatement," which sets out facts
sufficient to comply with 29 C.F.R. §5.12(c), is GRANTED.
