B-160725 Labor under Plan No. 14, and the processing of cases in different offices delays enforcement action and promotes inconsistencies. Evidence concerning the observance of Davis-Bacon Act requirements serves three purposes. It establishes bases upon which settlement is made with a contractor for performance, upon which debarment is required, and upon which amounts are withheld from a contractor and disbursed to employees as wage adjustments. Obviously, the participation of three agencies (the contracting agency, the Department of Labor, and the General Accounting Office) in investigations to develop such evidence involves considerable duplication of effort and may be unduly burdensome upon contractors. Obviously, also, the consideration and evaluation of evidence by three separate agencies necessitates repeated transfers of records and further duplication. In addition, the well-established procedures for determining and adjusting matters of compliance with prescribed contract requirements, including appeal procedures, are disrupted and bypassed when contract settlement in the area of labor standards compliance is removed from the jurisdiction of contracting agencies and placed in the Department of Labor, or GAO, or both. In view thereof, it is our opinion that the enforcement duties now entrusted to our Office more appropriately can be discharged by the Department of Labor and the contracting agencies concerned, and we therefore recommend that all enforcement responsibilities be transferred to their jurisdiction. In the interest of simplification and savings, we also suggest the practicability of a greater utilization of primary responsibility in the individual contracting agencies for verifying and enforcing compliance. This responsibility would include the duties of making adequate compliance investigations, withholdings and disbursements of wage adjustments to underpaid employees when proper and necessary, and the imposition of debarment where appropriate because of violations. Adequate appeal procedures for the settlement of disagreements as to satisfactory performance of required conditions already exist under standard contract provisions. In instances where disputes arise concerning the existence or extent of a prevailing wage rate or classification, since this is a matter initially determined by the Department of Labor, it appears that appeal procedures should be established in that Department. In the case of appeals concerning the imposition of B-160725 debarment, after appropriate statement of charges, hearings if requested, and findings of fact, it may be desirable that, in the interest of a consistent application of this sanction to violators, such appeals also should be decided by the Department of Labor. Under such an arrangement, the Department of Labor would have responsibility for overall regulation to achieve coordination and consistency of enforcement, as well as all rate making jurisdiction, but only such investigative and appeal (in the case of rates and debarments) functions as are essential to ensure consistency of enforcement. The Department would not engage in fact finding in the contract settlement area. It is believed that, given adequate prevailing wage determinations and such guides in the form of regulations as are necessary to consistency of enforcement, the contracting agencies could take satisfactory steps to ensure compliance, wage adjustments in accordance therewith (including direct payment where necessary), and debarment, and so avoid the disruption of settlement procedures, the expense consequent upon duplication of investigative effort and repeated transfers of evidence, and the inevitable delays of fact finding and review authority in additional separate agencies. The simplication of enforcement measures suggested would, it is believed, go far toward making possible a current and efficient handling of labor standards problems under construction contracts. There can be little doubt that cumbersome enforcement procedures result in confusion and delays and in the completion of enforcement actions only long after performance. The most pressing need at this time appears to be for simple, direct enforcement machinery which can determine labor standards compliance at the time of performance and provide for the prompt and efficient resolution of all questions (whether involving the ascertainment of prevailing wage rates for classifications of employees utilized, appropriate settlements with contractors on the basis of their performance, the enforcement of wage adjustments by direct payments to employees where necessary, or application of the debarment sanction) in a manner fair to all concerned. In connection with the direction that the Secretary of Labor distribute lists of debarments to Federal agencies, we recommend a perfecting amendment to the Walsh-Healey Act (which now provides for reporting debarments thereunder to our Office for publication) so that a single combined list can be issued by the Secretary. B-160725 We suggest, however, that any legislation, or recommendation for legislation, to accomplish the purposes set out above should clearly indicate that it is intended to apply only to matters involving compliance with, and enforcement of, the obligations of contractors, and is not intended to affect the jurisdiction of this Office to consider and decide other questions, such as those involving application or administration of the Act, which may be raised by protesting bidders, by contractors, by procuring agencies, or may otherwise come to our attention during the performance of our statutory functions. If any further information or assistance is desired, we shall be pleased to cooperate. Sincerely yours, Temer B. Staata Comptroller General APPENDIX C List of Recommendations 1. Base procurement of architect-engineer services, so far as practicable, on competitive negotiations, taking into account the technical competence of the proposers, the proposed concept of the end product, and the estimated cost of the project, including fee. The Commission's support of competitive negotiations is based on the premise that the fee to be charged will not be the dominant factor in contracting for professional services. The primary factor should be the relative merits of proposals for the end product, including cost, sought by the Government, with fee becoming important only when technical proposals are equal. The practice of initially selecting one firm for negotiation should be discouraged, except in those rare instances when a single firm is uniquely qualified to fill an unusual need for professional services. 2. Provide policy guidance, through the Office of Federal Procurement Policy, specifying that on projects with estimated costs in excess of $500,000 proposals for A-E contracts should include estimates of the total economic (lifecycle) cost of the project to the Government where it appears that realistic estimates are feasible. Exceptions to this policy should be provided by the agency head or his designee. Dissenting Position Dissenting Recommendation 1. The procurement of A-E services should continue to be based on a competitive selection process as outlined in Public Law 92-582, which focuses on the technical competence of interested prospects. Solicitations of a price proposal and negotiations as to price should be undertaken only when the best qualified firm has been ascertained; if mutual agreement cannot be reached, the next best qualified firm should be asked for a price proposal, followed by negotiation; and if necessary, the process should be repeated until a satisfactory contract has been negotiated. [Offered in lieu of Commission recommendations 1 and 2.] 3. Consider reimbursing A-Es for the costs incurred in submitting proposals in those instances where unusual design and engineering problems are involved and substantial work effort is necessary for A-Es to submit proposals. 4. Repeal the statutory six-percent limitation on A-E fees. Authorize the Office of Federal Procurement Policy to provide appropriate policy guidelines to ensure consistency of action and protection of the Government's interest. |