CBCA 5837

DISMISSED FOR LACK OF JURISDICTION: February 27, 2018 CBCA 5837 ALCAZAR TRADES, INC., Appellant, v. NUCLEAR REGULATORY COMMISSION, Respondent. Jonathan M. Bailey and Kristin E. Zachman of Bailey & Bailey, P.C., San Antonio, TX, counsel for Appellant. Ruth Kowarski Cooke, Shelbie R. Lewman, and Robin A. Baum, Office of the General Counsel, Nuclear Regulatory Commission, Washington, DC, counsel for Respondent. SOMERS, Board Judge (Chair). The Nuclear Regulatory Commission (NRC) awarded a task order for janitorial services to Alcazar Trades, Inc. (ATI) under a General Services Administration (GSA) schedule contract. After award, ATI negotiated a new collective bargaining agreement (CBA). ATI submitted this agreement to the NRC contracting officer (CO) and requested an equitable adjustment for all option years. The contracting officer denied the claim and ATI appealed. In lieu of filing an answer, NRC filed a motion to dismiss for lack of jurisdiction. For the reasons explained below, we grant the motion to dismiss. CBCA 5837 2 Background On October 23, 2105, the NRC requested quotations from holders of GSA schedule contracts for the provision of custodial services for multiple locations in Montgomery County, Maryland. The request for quotations (RFQ) contemplated the award of a firm fixed-price/time and material hybrid task order, with a cost reimbursable line for reimbursable work, not to exceed $75,000 per year, for a base year with four option years. ATI responded to the RFQ. On April 12, 2016, the NRC awarded a task order to ATI for the services in question. The Service Contract Act of 1965, 41 U.S.C. §§ 6701-6707 (2012), mandates that under certain contracts with federal government agencies, contractors must pay, at a minimum, the wages and fringe benefits identified in a wage determination issued by the Department of Labor (DOL). The Act applied to ATI’s schedule contract and the task order with NRC incorporated DOL’s wage determination 05-2013, revision 16, dated August 8, 2015. The contract incorporated by reference Federal Acquisition Regulation (FAR) clause 52.222-41, Service Contract Labor Standards (2014) (SCLS), which includes the following relevant provision: (t) Disputes Concerning Labor Standards. The U.S. Department of Labor has set forth in 29 CFR parts 4, 6, and 8 procedures for resolving disputes concerning labor standards requirements. Such disputes shall be resolved in accordance with those procedures and not the Disputes clause of this contract. Disputes within the meaning of this clause include disputes between the Contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives. 48 CFR 52.222-41 (2015). The schedule contract also included FAR clause 52.222-43, Fair Labor Standards Act and Service Contract Labor Standards–Price Adjustment (Multiple Year and Option Contracts) (May 2014). In December 2016, Local 99 of the International Union of Operating Engineers, representing ATI’s employees, sought to negotiate a new CBA. After successful negotiations, ATI entered into a new agreement with the union, to be effective April 1, 2017. CBCA 5837 3 On February 1, 2017, NRC informed ATI that it planned to exercise the first option year of the contract, which it did through contract modification issued on February 6, 2017. On February 17, 2017, ATI attempted to contact NRC’s contracting officer about the new collective bargaining agreement, but apparently used an incorrect email address. Using the correct email address on February 28, 2017, ATI informed NRC’s contracting officer about the new collective bargaining agreement and asked for an equitable adjustment to cover the increases in wages and benefits. The record does not include evidence that DOL had issued a new wage determination incorporating the collective bargaining agreement at that time. On March 20, 2017, ATI asked the NRC contracting officer about the status of its request for equitable adjustment. The contracting officer responded on March 27, stating that “a majority of the contract per month and year is fixed price . . . . The labor rate, fringe, wage and benefits etc., are all built into that fixed price.