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62 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).
Legal and Administrative Remedies 21. Make authority presently conferred by Public Law 85-804 permanent authority. , 22. Authorize use <strong>of</strong> Public Law 85-804 by all contracting agencies under regulations prescribed by <strong>the</strong> President. 23. Incorporate Public Law 85-804 into <strong>the</strong> primary procurement statute. ,/ [One <strong>Commission</strong>er dissents to recommendations 21-23.] 24. Revise existing requirements in Public Law 85-804 on reporting to Congress. , 83
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