OFCCP v. Rampart Electric, Inc., 89-OFC-14 (Sec'y Sept. 11, 1995)

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OFCCP v. Rampart Electric, Inc., 89-OFC-14 (Sec'y Sept. 11, 1995)

U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: September 11, 1995
CASE NO. 89-OFC-14

IN THE MATTER OF

OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,
PLAINTIFF,

RAMPART ELECTRIC, INC.,
DEFENDANT.

BEFORE: THE SECRETARY OF LABOR

FINAL DECISION AND ORDER OF DEBARMENT AND RELATED SANCTIONS

This proceeding arises under Executive Order No. 11,246,3 C.F.R. 339 (1964-65), reprinted as amended in 42 U.S.C. § 2000e note (1988). Upon the Defendant's failure to respond and participate in these proceedings, the Administrative Law Judge (ALJ) issued a [Recommended] Decision and Order (R. D. and 0.), holding that the Defendant had thereby admitted the material allegations of fact in Plaintiff Office of Federal Contract Compliance's (OFCCP,s) Administrative complaint and had waived its right to a hearing. The ALJ recommended cancellation, termination, and suspension of existing Government contracts¹ and federally assisted construction contracts, ineligibility for the receipt of future Government contracts and federally assisted construction contracts, and prohibition against extensions or other modifications of current contracts. R. D. and 0. at 3.

After referring to the Defendant's failures to respond to the ALJ's Notice of Docketing and the Show Cause Order directing the Defendant to show why its failure to file either an answer to OFCCP's complaint or to the Notice of Docketing should not constitute an admission of OFCCP's allegations under 41 C.F.R. § 60-30.6, the ALJ held the following:

[Page 2]

Defendants [sic] persistent refusal to pursue this matter has left this forum no alternative other than to find that it has ADMITTED all the material allegations of fact contained in the complaint and has hereby WAIVED its right to a hearing on this matter. Accordingly it is FOUND that:

1. Defendant Rampart Electric, Inc., at all times material hereto, has been a corporation engaged in construction, and has maintained corporate offices at 6605 Alberta Drive, Colorado Springs, Colorado 80918.

2. Defendant, at all times material hereto, has had a contract with the Army and Air Force Exchange service as the subcontractor in an expansion project in Colorado Springs, Colorado, the value of which was in excess of $10,000. Defendant was therefore a Government contractor within the meaning of Executive Order (E.O.) 11246, and was subject to the contractual obligations imposed on Government Contractors by E.O. 11246 and the implementing regulations, including the regulations found at 41 C.F.R. Part 60-4 [affirmative action requirements for construction contractors and subcontractors].

3. A compliance review under E.O. 11246 was conducted. On June 21, 1987, plaintiff notified defendant of the problem areas which were identified in the compliance review . . . .

4. On July 17, 1987, defendant entered into a Conciliation Agreement with OFCCP, committing defendant to submit Monthly Manpower Utilization Reports (Standard Form CC-257) to OFCCP . . . .

5. Defendant failed to submit the required Monthly Manpower Utilization Reports (Standard Form CC257), as provided for in the Conciliation Agreement.

6. OFCCP unsuccessfully attempted to secure the reports and defendant's compliance through means of conciliation and persuasion.

7. On January 28, 1989, OFCCP sent defendant a notice to show cause pursuant to 41 C.F.R 60-4.8 to which defendant failed to respond with (sic] 15 days . . . .

8. Defendant continues to refuse to submit the reports which were due and is in violation of E.O. 11246, the implementing regulations and its conciliation Agreement.

R.D. and 0. at 1-2.

Although the Defendant's failure to file an answer constituted an admission of OFCCP's complaint allegations, 41 C.F.R. § 60-30.6(b), a waiver of hearing and a lawful basis for the ALJ's subsequent adoption of OFCCP's material facts as alleged in its complaint, 41 C.F.R. § 60-30.6(c), the Defendant was further provided "an opportunity to file exceptions to [the R.D. and 0.] and to file briefs in support of the

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exceptions." 41 C.F.R. § 60-30.6(c). The Defendant made no such filings with the Secretary.

The Office of Administrative Appeals (OAA) subsequently issued an Order to Ensure Service and Establish Briefing Schedule in response to Plaintiff's Motion for Entry of Default Judgment and Entry of Sanctions. Defendant did not reply to OAA's order and the document was returned with a notation (without attribution) that the Defendant had moved.²

I agree with the R. D. and 0. and OFCCP's motion for entry of a default judgment and sanctions. Accordingly, I enter this default judgment and order sanctions, including debarment, for the Defendant's breach of its Conciliation Agreement to submit Monthly Manpower Utilization Reports necessary to measure compliance thereunder; its failure to respond to OFCCP's attempts to secure these reports through conciliation and persuasion and to respond to OFCCP's notice of violations; and its repeated failures to participate in the ALJ proceeding. Debarment and other procurement-related sanctions are authorized for both substantive and procedural violations of the Executive Order and implementing regulations. Uniroyal, Inc. v. Marshall, 482 F. Supp. 364, 371-75 (D.D.C. 1979); OFCCP v. Milwaukee Fence Co., Case No. 91-OFC-3, Sec. Dec. and Fin. Admin. Ord., Oct. 6, 1992, slip op. at 1-4; OFCCP v. Disposable Safety Wear Inc., Case No. 92-OFC-11, Sec. Dec. and Fin. Admin. Ord., Sept. 29, 1992, slip op. at 1-6, 13.

Accordingly, I make the following ORDER:

1. All federal contracts and subcontracts and federally assisted construction contracts and subcontracts of Defendant, Rampart Electric Inc., its successors, officers, agents, servants, employees, direct or beneficial owners, divisions or subsidiaries and those persons acting in concert with them shall be canceled, terminated and suspended; and

2. Defendant, Rampart Electric Inc., its successors, officers, agents, servants, employees, direct or beneficial owners, divisions or subsidiaries and those persons in active concert or participation with then shall be ineligible for the award of new federal contracts and subcontracts or federally assisted construction contracts or subcontracts or the extension or modification of any such existing contracts or subcontracts.

These sanctions shall be implemented and shall remain in effect until such time as Defendant, Rampart Electric Inc., its officers, agents,³ servants, employees, direct or beneficial owners, divisions or subsidiaries, successors or assigns, and those persons in active concert or participation with them have satisfied the OFCCP Director, pursuant to 41 C.F.R. § 60-1.31, that Defendant is in compliance with the provisions of Executive order No. 11,246, as amended, and the rules and regulations issued thereunder.

SO ORDERED.

Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹Contracts also connote subcontracts. See 41 C.F.R. § 60-1.3 (1995) (definitions of contract, contractor, federally assisted construction contract, government contract, prime contractor, subcontract, subcontractor); 41 C.F.R. § 60-4.1.

² Review of the various documents in the record reveals that the name of Rampart Electric's President, Jeff Dwyer, has been spelled three different ways. The Conciliation Agreement is signed by "Joni Dwyer for" the typed name "Jeff Dwyer." The certificates of service in the Administrative Complaint, the Notice of Docketing and the Order to Show Cause refer to him as "Jeff Droyer." The certificates of service in the Motion for Judgment on the Pleadings and the R. D. and 0. list him as "Jeff Dryer." The certificate of service in Plaintiff's Motion for Entry of Default Judgment and Entry of Sanctions and OAA's Order to Ensure Service and Establish Briefing Schedule refer to "Jeff Dwyer." All documents refer to him as President of Rampart Electric at 6605 Alberta Drive, Colorado Springs, Colorado. Subsequent inquiries, including communications with the Colorado Secretary of State, have been unable to locate Mr. Dwyer and/or Rampart Electric.

³"Officers" and "agents" in this Order include Jeff Dwyer, a/k/a Jeff Droyer and Jeff Dryer in various portions of the record.