CBCA 5458

DISMISSED FOR LACK OF JURISDICTION: March 31, 2017 CBCA 5458 CONSULTIS OF SAN ANTONIO, INC., Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. David R. Warner of Centre Law & Consulting LLC, Tysons Corner, VA, counsel for Appellant. Harold W. Askins III, Office of Regional Counsel, Department of Veterans Affairs, Charleston, SC, counsel for Respondent. Before Board Judges VERGILIO, KULLBERG, and O’ROURKE. O’ROURKE, Board Judge. On September 1, 2016, the Board docketed an appeal filed by appellant, Consultis of San Antonio, Inc. (Consultis), from a contracting officer’s decision dated June 7, 2016. After reviewing appellant’s motion to amend the complaint, the Board became concerned about its jurisdiction over this appeal and issued a show cause order to the parties on February 24, 2017. Both parties, Consultis and the Department of Veterans Affairs (VA or respondent), replied to the order. After reviewing their responses and the appeal file, the Board finds that the decision by the task order contracting officer was insufficient to create jurisdiction over this dispute, since it requires an interpretation of the schedule contract provisions by the schedule contracting officer. The appeal is dismissed for lack of jurisdiction. CBCA 5458 2 Background On October 1, 2013, the VA awarded task order VA248-14-F-0293 to Consultis under its Federal Supply Schedule (FSS) contract (GS-35F-0243T) with the General Services Administration (GSA). The task order was for the performance of information technology services, including installing, configuring, and maintaining the organization’s server and workstations. In accordance with the task order statement of work, appellant was required to supply all necessary personnel, management, administrative support, and technical services in accordance with the statement of work. The provision referencing task order terms and conditions simply states, “Not Specified In The Contract.”1 The task order period of performance was for one base year and four option years. Multiple modifications to the contract were issued to extend the performance period, exercise options, and add funding. During performance, a contractor employee raised concerns about the wage rates being paid to contractor personnel. An inquiry by the Department of Labor (DOL) ensued regarding applicability of the Service Contract Labor Standards (SCLS) to the contract. A wage and hour investigator in Orlando, Florida, determined that while the Service Contract Act (SCA)2 clauses were included in the original GSA contract, the applicable wage determinations were not. The wage and hour office approached both the GSA contracting officer and the VA contracting officer and requested that they add the appropriate wage determinations to the task order. Both contracting officers initially declined to add them. For this reason, the wage and hour office determined that it had no enforcement authority over the issue. Performance of the task order ended on September 30, 2015, with no changes to wage rates. Nearly six months later, on March 10, 2016, the VA contracting officer issued a unilateral modification to the task order, which incorporated four Department of Labor wage determinations for the place of performance for the task order. The modification provided the contractor with a thirty-day period to file for a wage adjustment as a result of the incorporation of the wage determinations. On May 11, 2016, appellant submitted a letter to the division chief for services contracting of “Network Contracting Office 8,” in Tampa, Florida. In accordance with the instructions contained in the modification, the letter requested supplemental payment from the VA as a result of the wage determinations, and referred to an attached “invoice” showing cost calculations per employee for various labor 1 The task order specifically included Federal Acquisition Regulation (FAR) clauses pertaining to options, as well as VA clauses. 2 The SCA is now codified at 41 U.S.C. §§ 6701-6707. CBCA 5458 3 categories.