ARB CASE NO. 96-124
(ALJ CASE NO. 93-DBA-65)
DATE: September 6, 1996
In the Matter of:
BHATT CONTRACTING
COMPANY, INC., Contractor
and
VIJAY A. BHATT
Individually and as President
ORDER DENYING ADMINISTRATOR'S MOTION TO DISMISS
AND
ORDER OF REMAND
This case arises under the Davis-Bacon and Related Acts (DBRA) and 29
C.F.R. Part 7. The underlying dispute in this case was resolved pursuant to an April 25, 1996 ALJ
Order that adopted Consent Findings executed by the parties and dismissed the case. On August 24,
1995 an Administrative Law Judge (ALJ) issued an order denying the petition of Bhatt Contracting
Company, Inc. and Vijay Bhatt (collectively, Bhan) requesting that the department of Labor be
prohibited from placing them on the debarment list. Bhatt appealed that denial and the
Administrator, Wage and Hour Division (Administrator), filed a Motion to Dismiss. We have
thoroughly reviewed the submissions and the arguments of the parties and, for the following reasons,
deny the Administrator's Motion to Dismiss. We also enter the following Order on Bhatt's petition
for review.
BACKGROUND
In 1993, the Administrator 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 of the name or names of said contractor or subcontractor on the
ineligible list as provided [in pertinent portions of Section 5.12]) to receive any contracts or
[Page 2]
subcontracts subject to any statutes listed in § 5.1. "' The Secretary's regulations state
that the 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. Also pursuant to the settlement, the parties agreed to "waive any further procedural steps
before the Office of Administrative Law Judges and the Wage Appeals Board concerning matters
which are the subject of this agreement. The parties also waive[d] any right to challenge or contest
the validity of then findings and Order based thereon." Consent Order, paragraph 5.
29 C.F.R. § 5.12(c) provides that "[a]ny person or firm debarred
under § 5.12(x)(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." On or about February 15, 1996 Bhatt requested removal from the ineligible
list pursuant to this provision. Bhatt was informed approximately one month later that the
Administrator had not promptly forwarded their name to the Comptroller General as required by 29
C.F.R. § 6.35. According to Bhatt's uncontradicted assertion in the record, their name did not
appear on the ineligible list until "approximately nine (9) months" after the order to do
so was entered. The Administrator argues that, despite the delay in placing them on the ineligible
list, Bhatt is not presently eligible for relief under § 5.12(c) and will not be eligible for relief
from debarment until they have been on the list for six months.
1 Wage Appeals Board;
see, 29 C.F.R. Part 7 (1995).
2See,
section 5(a) of the Service Contract Act of 1965. as amended, 41 U.S.C. § 351 et seq., a
prevailing wage statute applicable to federal service contracts. Section 5(a) imposes a time of 60 days
for the Secretary of Labor (or his or her designee) to transmit the names of parties debarred to the
Comptroller General of the United States for placement on the list of debarred bidders. 41 U.S.C.
§ 354(a). Although the act of transmitting the names of debarred bidders is ministerial -- and the
time limit more probably precatorv than mandatory -- the Service Contract Act's 60-day time is
instructive as to the meaning of "prompt" in the context of the instant matter.
3 It is here noted that
counsel for the Administrator ostensibly had a copy of the Consent Order soon after issuance by the
ALT; the parties had waived their rights to appeal the Order: and that the Wage Appeals Board never
received a petition for review seeking to appeal the Consent Order. (During its existence, the Wage
.Appeals Board promptly notified all known parties and interested persons upon the filing of each
petition for review.)