(a)(1) Whenever any contractor or subcontractor is found by the
Secretary of Labor to be in aggravated or willful violation of the labor
standards provisions of any of the applicable statutes listed in
Sec. 5.1 other than the Davis-Bacon Act, 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 as provided below) to
receive any contracts or subcontracts subject to any of the statutes
listed in Sec. 5.1.
(2) In cases arising under contracts covered by the Davis-Bacon Act,
the Administrator shall transmit to the Comptroller General the names of
the contractors or subcontractors and their responsible officers, if any
(and any firms in which the contractors or subcontractors are known to
have an interest), who have been found to have disregarded their
obligations to employees, and the recommendation of the Secretary of
Labor or authorized representative regarding debarment. The Comptroller
General will distribute a list to all Federal agencies giving the names
of such ineligible person or firms, who shall be ineligible to be
awarded any contract or subcontract of the United States or the District
of Columbia and any contract or subcontract subject to the labor
standards provisions of the statutes listed in Sec. 5.1.
(b)(1) In addition to cases under which debarment action is
initiated pursuant to Sec. 5.11, whenever as a result of an
investigation conducted by the Federal agency or the Department of
Labor, and where the Administrator finds reasonable cause to believe
that a contractor or subcontractor has committed willful or aggravated
violations of the labor standards provisions of any of the statutes
listed in Sec. 5.1 (other than the Davis-Bacon Act), or has committed
violations of the Davis-Bacon Act which constitute a disregard of its
obligations to employees or subcontractors under section 3(a) thereof,
the Administrator shall notify by registered or certified mail to the
last known address, the contractor or subcontractor and its responsible
officers, if any (and any firms in which the contractor or subcontractor
are known to have a substantial interest), of the finding. The
Administrator shall afford such contractor or subcontractor and any
other parties notified an opportunity for a hearing as to whether
debarment action should be taken under paragraph (a)(1) of this section
or section 3(a) of the Davis-Bacon Act. The Administrator shall furnish
to those notified a summary of the investigative findings. If the
contractor or subcontractor or any other parties notified wish to
request a hearing as to whether debarment action should be taken, such a
request shall be made by letter postmarked within 30 days of the date of
the letter from the Administrator, and shall set forth any findings
which are in dispute and the reasons therefor, including any affirmative
defenses to be raised. Upon receipt of such request for a hearing, the
Administrator shall refer the case to the Chief Administrative Law Judge
by Order of Reference, to which shall be attached a copy of the letter
from the Administrator and the response thereto, for designation of an
Administrative Law Judge to conduct such hearings as may be necessary to
determine the matters in dispute. In considering debarment under any of
the statutes listed in Sec. 5.1 other than the Davis-Bacon Act, the
Administrative Law Judge shall issue an order concerning whether the
contractor or subcontractor is to be debarred in accordance with
paragraph (a)(1) of this section. In considering debarment under the
Davis-Bacon Act, the Administrative Law Judge shall issue a
recommendation as to whether the contractor or subcontractor should be
debarred under section 3(a) of the Act.
(2) Hearings under this section shall be conducted in accordance
with 29 CFR part 6. If no hearing is requested within 30 days of receipt
of the letter from the Administrator, the Administrator's findings shall
be final, except with respect to recommendations regarding debarment
under the Davis-Bacon Act, as set forth in paragraph (a)(2) of this
section.
(c) Any person or firm debarred under Sec. 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. Such a request should be directed to the
Administrator of the Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, Washington, DC 20210, and
shall contain a full explanation of the reasons why such person or firm
should be removed from the ineligible list. In cases where the
contractor or subcontractor failed to make full restitution to all
underpaid employees, a request for removal will not be considered until
such underpayments are made. In all other cases, the Administrator will
examine 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 labor standards provisions of the statutes listed in Sec. 5.1,
and therefore should be removed from the ineligible list. Among the
factors to be considered in reaching such a decision are the severity of
the violations, the contractor or subcontractor's attitude towards
compliance, and the past compliance history of the firm. In no case will
such removal be effected unless the Administrator determines after an
investigation that such person or firm is in compliance with the labor
standards provisions applicable to Federal contracts and Federally
assisted construction work subject to any of the applicable statutes
listed in Sec. 5.1 and other labor statutes providing wage protection,
such as the Service Contract Act, the Walsh-Healey Public Contracts Act,
and 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 CFR part 7.
(d)(1) Section 3(a) of the Davis-Bacon Act provides that for a
period of three years from date of publication on the ineligible list,
no contract shall be awarded to any persons or firms placed on the list
as a result of a finding by the Comptroller General that such persons or
firms have disregarded obligations to employees and subcontractors under
that Act, and further, that no contract shall be awarded to ``any firm,
corporation, partnership, or association in which such persons or firms
have an interest.'' Paragraph (a)(1) of this section similarly provides
that for a period not to exceed three years from date of publication on
the ineligible list, no contract subject to any of the statutes listed
in Sec. 5.1 shall be awarded to any contractor or subcontractor on the
ineligible list pursuant to that paragraph, or to ``any firm,
corporation, partnership, or association'' in which such contractor or
subcontractor has a ``substantial interest.'' A finding as to whether
persons or firms whose names appear on the ineligible list have an
interest (or a substantial interest, as appropriate) in any other
firm, corporation, partnership, or association, may be made through
investigation, hearing, or otherwise.
(2)(i) The Administrator, on his/her own motion or after receipt of
a request for a determination pursuant to paragraph (d)(3) of this
section may make a finding on the issue of interest (or substantial
interest, as appropriate).
(ii) If the Administrator determines that there may be an interest
(or substantial interest, as appropriate), but finds that there is
insufficient evidence to render a final ruling thereon, the
Administrator may refer the issue to the Chief Administrative Law Judge
in accordance with paragraph (d)(4) of this section.
(iii) If the Administrator finds that no interest (or substantial
interest, as appropriate) exists, or that there is not sufficient
information to warrant the initiation of an investigation, the
requesting party, if any, will be so notified and no further action
taken.
(iv)(A) If the Administrator finds that an interest (or substantial
interest, as appropriate) exists, the person or firm affected will be
notified of the Administrator's finding (by certified mail to the last
known address), which shall include the reasons therefor, and such
person or firm shall be afforded an opportunity to request that a
hearing be held to render a decision on the issue.
(B) Such person or firm shall have 20 days from the date of the
Administrator's ruling to request a hearing. A detailed statement of the
reasons why the Administrator's ruling is in error, including facts
alleged to be in dispute, if any, shall be submitted with the request
for a hearing.
(C) If no hearing is requested within the time mentioned in
paragraph (d)(2)(iv)(B) of this section, the Administrator's finding
shall be final and the Administrator shall so notify the Comptroller
General. If a hearing is requested, the ruling of the Administrator
shall be inoperative unless and until the administrative law judge or
the Administrative Review Board issues an order that there is an
interest (or substantial interest, as appropriate).
(3)(i) A request for a determination of interest (or substantial
interest, as appropriate), may be made by any interested party,
including contractors or prospective contractors and associations of
contractor's representatives of employees, and interested Government
agencies. Such a request shall be submitted in writing to the
Administrator, Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, Washington, DC 20210.
(ii) The request shall include a statement setting forth in detail
why the petitioner believes that a person or firm whose name appears on
the debarred bidders list has an interest (or a substantial interest, as
appropriate) in any firm, corporation, partnership, or association which
is seeking or has been awarded a contract of the United States or the
District of Columbia, or which is subject to any of the statutes listed
in Sec. 5.1. No particular form is prescribed for the submission of a
request under this section.
(4) Referral to the Chief Administrative Law Judge. The
Administrator, on his/her own motion under paragraph (d)(2)(ii) of this
section or upon a request for hearing where the Administrator determines
that relevant facts are in dispute, will by order refer the issue to the
Chief Administrative Law Judge, for designation of an Administrative Law
Judge who shall conduct such hearings as may be necessary to render a
decision solely on the issue of interest (or substantial interest, as
appropriate). Such proceedings shall be conducted in accordance with the
procedures set forth at 29 CFR part 6.
(5) Referral to the Administrative Review Board. If the person or
firm affected requests a hearing and the Administrator determines that
relevant facts are not in dispute, the Administrator will refer the
issue and the record compiled thereon to the Administrative Review Board
to render a decision solely on the issue of interest (or substantial
interest, as appropriate). Such proceeding shall be conducted in
accordance with the procedures set forth at 29 CFR part 7.
[48 FR 19541, Apr. 29, 1983, as amended at 48 FR 50313, Nov. 1, 1983]
