CBCA 5084

DENIED: June 22, 2016 CBCA 5084 SECTEK, INC., Appellant, v. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, Respondent. Jeffrey Weinstein of The Weinstein Law Group, PLLC, Washington, DC, counsel for Appellant. Jennifer Klein and Stephani Abramson, Office of General Counsel, National Archives and Records Administration, College Park, MD, counsel for Respondent. Before Board Judges SHERIDAN, WALTERS, and CHADWICK. CHADWICK, Board Judge. SecTek, Inc. (SecTek or appellant) has a fixed-price contract with the National Archives and Records Administration (NARA or respondent) that is subject to the Service Contract Act, 41 U.S.C. §§ 6701-6707 (2012). SecTek employs unionized security guards. During the base year of the contract, SecTek and the union signed a new collective bargaining agreement (CBA), the economic terms of which took effect on the first day of the first option period. When SecTek requested an increase in the contract price for the first option period to reflect the higher wages and fringe benefits under the new CBA, NARA CBCA 5084 2 denied the request. NARA asserts that, on these facts, the base year of the contract was not the “predecessor contract” to the first option period for purposes of a price adjustment under the Service Contract Act and its implementing regulations. We agree and accordingly deny the appellant’s motion for summary relief, grant the respondent’s cross-motion for summary relief, and deny the appeal. Statement of Facts The parties agreed on the following facts, among others. 1. NARA awarded firm fixed price, task-order contract NAMA-14F-0127, for security guard support services, to SecTek in August 2014. The initial performance period was from September 1, 2014, through August 31, 2015. Appeal File, Exhibit 4; Joint Statement of Undisputed Facts ¶¶ 1-2. 2. The contract included Federal Acquisition Regulations (FAR) Clause 52.222-41, Service Contract Act of 1965 (Nov 2007). Pursuant to that clause, the contract incorporated Department of Labor Wage Determination 2005-2103, Revision 13, dated June 19, 2013, and CBA 2010-3553, Revisions 0 through 2, between SecTek and the International Guards Union of America and its Local 153 (the union), members of which worked for SecTek on the contract. Appeal File, Exhibits 1-2; Joint Statement of Undisputed Facts ¶¶ 1-2. 3. On April 3, 2015, NARA notified SecTek of its intent to exercise the first option period under the contract, from September 1, 2015, through August 31, 2016. Appeal File, Exhibit 1; Joint Statement of Undisputed Facts ¶ 3. 4. On June 29, 2015, SecTek signed a new CBA with the union. This new CBA stated that it was “effective upon signing except where stated otherwise.” Wages and fringe benefits were addressed in appendix A of the new CBA, which took effect on September 1, 2015. Thus, this CBA did not govern wages or fringe benefits until September 1, 2015. Appeal File, Exhibit 2 at 2, 37; Joint Statement of Undisputed Facts ¶ 5. 5. SecTek sent the new CBA to NARA on June 30, 2015. At the same time, SecTek requested a price adjustment under the contract, pursuant to FAR clause 52.222-43(d), Fair Labor Standards Act and Service Contract Act—Price Adjustment (Multiple Year and Option Contracts). Appeal File, Exhibit 3; Joint Statement of Undisputed Facts ¶ 6. 6. On August 15, 2015, the NARA contracting officer unilaterally issued a task order modification exercising the first option and incorporating in the contract, effective as of September 1, 2015, Revision 16 of Wage Determination 2005-2103, dated July 8, 2015. This CBCA 5084 3 revised wage determination did not incorporate the wages or fringe benefits in the June 2015 CBA between SecTek and the union. Appeal File, Exhibit 4; Joint Statement of Undisputed Facts ¶¶ 7-8. 7. On August 28, 2015, after consulting with NARA about why the contracting officer had not incorporated the June 2015 CBA in the contract, SecTek sent NARA a revised version of the CBA, in which the effective date of Appendix A was changed from September 1, 2015, to August 31, 2015. Appeal File, Exhibit 5; Joint Statement of Undisputed Facts ¶¶ 10-11. 8. Despite this change, SecTek did not make any payments to its employees at the rates in the June 2015 CBA during the base year of the contract.