Report of the Commission on Government ... - Bayhdolecentral

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The decision on this appeal includes findings,
conclusions, and a recommendation or order
for debarment. The Solicitor's recommendation
or order for debarment is final unless <strong>the</strong>
case is "accepted for review" by <strong>the</strong> Wage
Appeals Board.'
The foregoing rules <strong>of</strong> practice appear to
have <strong>the</strong>se weaknesses:
• The file on which <strong>the</strong> case is built is
essentially ex parte, subject to internal
guidelines that are nei<strong>the</strong>r available to <strong>the</strong>
challenged contractor for examination nor for
rebuttal <strong>of</strong> findings or confrontation <strong>of</strong> witnesses.
• The nature <strong>of</strong> <strong>the</strong> presentations to rebut
a proposed debarment, whe<strong>the</strong>r by oral
hearing or ano<strong>the</strong>r procedure and whe<strong>the</strong>r
or not allowing o<strong>the</strong>r adversary-type practice,
is discretionary with <strong>the</strong> Department
<strong>of</strong> Labor.
• Functions are not clearly separated as between
<strong>of</strong>ficials who propose debarment and
those who decide <strong>the</strong> matter.
• Final steps in <strong>the</strong> formal rules governing
appeals are discretionary with <strong>the</strong> Department
<strong>of</strong> Labor.
Contract Work Hours and
Safety Standards Act'
This act applies only to overtime earnings.
The rules _<strong>of</strong> practice are <strong>the</strong> same as those
for <strong>the</strong> Davis-Bacon related statutes; however,
<strong>the</strong> Work Hours Act also provides a right <strong>of</strong>
appeal on <strong>the</strong> question <strong>of</strong> liquidated damages
assessed against a contractor or subcontractor
found in violation <strong>of</strong> <strong>the</strong> act. If such contractor
does not prevail in <strong>the</strong> appeal, which by <strong>the</strong>
terms <strong>of</strong> <strong>the</strong> act goes eventually to <strong>the</strong> Court
<strong>of</strong> Claims, it may yet be debarred for overtime
violation by <strong>the</strong> Secretary <strong>of</strong> Labor.'
Hence, <strong>the</strong> comments <strong>of</strong>fered above are applicable.
129 CFR § 5.6{e) (3) (1972), For such a case involving a Davis­
Bacon recommendation see Framlau Corp. v, Dembling, No. 72-1156
(RD. Pa. June 14, 1972).
s 40 U.S.C. §§ 327-33 (1970).
9 29 CFR § 5.1 (1972).
Walsh-Healey Public Contracts Act"
Part G
The Walsh-Healey Act applies to contracts
for supplies in excess <strong>of</strong> $10,000 and provides
for debarment for breach <strong>of</strong> any <strong>of</strong> <strong>the</strong> agreements
or representations required by <strong>the</strong> act.
The period <strong>of</strong> debarment can extend for as
long as three years.
Rules <strong>of</strong> practice for investigation <strong>of</strong> <strong>the</strong>
facts and determination <strong>of</strong> <strong>the</strong> debarment t i
differ significantly from those for proceedings
under <strong>the</strong> Davis-Bacon and related statutes.
After a breach or violation <strong>of</strong> Walsh-Healey
is reported to a local or regional <strong>of</strong>fice <strong>of</strong> <strong>the</strong>
Department <strong>of</strong> Labor a formal complaint is
issued, a date is set for a hearing before a
trial examiner, and a time is also set for
answer (which must contain a "concise statement
<strong>of</strong> <strong>the</strong> facts'" ra<strong>the</strong>r than a simple denial).
Whe<strong>the</strong>r or not an answer is filed, a
hearing is scheduled and <strong>the</strong> case proceeds.
The rules provide for motions by all parties
to <strong>the</strong> hearings, for intervention, and, on <strong>the</strong>
application <strong>of</strong> any party, for <strong>the</strong> subpoena <strong>of</strong>
witnesses. Detailed provisions are made for
<strong>the</strong> conduct <strong>of</strong> <strong>the</strong> hearing by a trial examiner
who shall have no o<strong>the</strong>r duties inconsistent
with his duties and responsibilities as an examiner.
Ex parte proceedings are specifically
prohibited except upon proper notice and opportunity
to participate. The rules also provide
for confrontation and examination <strong>of</strong> witnesses,
cross-examination, and introduction <strong>of</strong>
documentary and o<strong>the</strong>r evidence. In short,
<strong>the</strong>se rules sharply curtail <strong>the</strong> discretionary
rights <strong>of</strong> <strong>the</strong> Government.
Upon issuance <strong>of</strong> <strong>the</strong> trial examiner's order
and decision embodying his finding <strong>of</strong> facts
and conclusions <strong>of</strong> law on all issues, <strong>the</strong>
contractor may petition for a review. When review
is requested, <strong>the</strong> Administrator <strong>of</strong> Workplace
Standards issues an order denying <strong>the</strong>
review or announces his review decision. If
<strong>the</strong> contractor is found in violation <strong>of</strong> <strong>the</strong> act,
he may petition <strong>the</strong> Secretary <strong>of</strong> Lahor for relief
from <strong>the</strong> ineligible list provisions. The
petition must be filed within 20 days <strong>of</strong> service
<strong>of</strong> <strong>the</strong> trial examiner's decision or <strong>of</strong> <strong>the</strong>
Administrator's review decision. In <strong>the</strong> absence
<strong>of</strong> such a petition, <strong>the</strong> trial examiner's
1(141 U.S.C. §§ 35-45 (1970).
11 See 41 CFR Part 50-203 (1972).