CBCA 5036

DENIED: May 3, 2017 CBCA 5036 SECTEK, INC., Appellant, v. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, Respondent. Jeffrey Weinstein of The Weinstein Law Group, PLLC, Washington, DC, counsel for Appellant. Jennifer A. Klein, Office of the General Counsel, National Archives and Records Administration, College Park, MD, counsel for Respondent. Before Board Judges SOMERS, HYATT, and SHERIDAN. HYATT, Board Judge. This appeal is of a contracting officer’s deemed denial of the certified claim of SecTek, Inc. for the amount of $168,655.52 in increased costs of employee benefits it incurred in performing its contract to provide security guard services for two National Archives and Records Administration (NARA) locations. The parties have agreed to a joint statement of undisputed facts and have filed cross motions for summary relief. For the reasons stated herein, we deny SecTek’s motion and grant the Government’s motion, thus denying the appeal. CBCA 5036 2 Findings of Fact On March 6, 2015, NARA issued a request for quotation (RFQ) for the provision of security guard support services for the Archives I building located in Washington, D.C., and for the Archives II building located in College Park, Maryland. The RFQ contemplated the award of a firm fixed-price task order under the successful offeror’s General Services Administration (GSA) Schedule contract, for a base year with four option years. The pricing instructions stated that the offered prices were to represent the fully burdened cost to deliver the services listed in the task order. The RFQ also provided that in the event option years were exercised, task order prices would be adjusted in accordance with Federal Acquisition Regulation (FAR) clause 52.222-43, Fair Labor Standards Act and Service Contract Act- Price Adjustment (Multiple Year and Option Contracts). As required by the Service Contract Act, 41 U.S.C. §§ 6701-6707 (2012), the RFQ included documentation setting forth minimum wage and fringe benefit requirements for the proposed contract. Enclosure three provided the pertinent Department of Labor wage determination dated June 19, 2013. The incumbent contractor had entered into a collective bargaining agreement with the National Association of Special Police and Security Officers. Enclosure four contained the applicable collective bargaining agreement wage determination, CBA-2010-3553. Article XXVII of the incumbent contractor’s collective bargaining agreement addressed employee wages and benefits, which are set forth in an appendix to the agreement. The appendix prescribed the hourly wages to be paid to armed security guards, the rates for employer health and welfare and pension contributions, and the basis for accrual of vacation and holiday pay. With respect to accrued vacation benefits, the collective bargaining agreement established the amount of vacation time employees earned based on their years of service as follows: 1 - 4 years of service 2 weeks 5 - 14 years of service 3 weeks 15 or more years of service 5 weeks The RFQ also incorporated by reference FAR clause 52.222-17, Nondisplacement of Qualified Workers. 48 CFR 52.222-17 (2014). This clause requires the successor contractor to offer the service employees of the predecessor contractor, whose employment will be terminated as a result of the award of the new contract, a right of first refusal of employment under the newly awarded contract in positions for which the employees are qualified. To facilitate the nondisplacement of the successor contractor’s employees, paragraph (e)(1) of the clause requires: CBCA 5036 3 [T]he predecessor Contractor shall, not less than 10 days before completion of this contract, furnish the Contracting Officer a certified list of the names of all service employees working under this contract and its subcontracts during the last month of contract performance. The list shall also contain anniversary dates of employment of each service employee under this contract and its predecessor contracts either with the current or predecessor Contractors or their subcontractors.