ASBCA 58533

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) CP of Bozeman, Inc., dba Maintenance ) ASBCA No. 58533 Patrol ) ) Under Contract No. FA4613-06-C-0005 ) APPEARANCE FOR THE APPELLANT: Mr. Raul Luciani President APPEARANCES FOR THE GOVERNMENT: Col Jennifer L. Martin, USAF Air Force Chief Trial Attorney Capt Joel B. Lofgren, USAF Trial Attorney OPINION BY ADMINISTRATIVE JUDGE CLARKE ON THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT The Air Force first challenges the jurisdiction of this Board and, in the alternative, requests summary judgment. Although CP of Bozeman, Inc., db a Maintenance Patrol's (CP) appeal was well over a year after the final decision was issued, the record reflects actions by the Air Force that prejudiced CP's ability to appeal within the 90-day appeal period. We deny the Air Force's motion to dismiss for lack of jurisdiction. We have jurisdiction pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. CP claims additional increases in wages and fringe benefits resulting from annual increases in its collective bargaining agreement (CBA) with its employee's union. However, CP previously signed contract modifications increasing wages and fringe benefits that included valid releases. We enforce the releases as far as they go, but they do not entirely protect the Air Force. We grant partial summary judgment for the Air Force. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. CP was awarded a contract with the Air Force for mess attendant services at Francis E. Warren Air Force Base's (F.E. Warren), Cheyenne, Wyoming, dining facility on 25 September 2006 with an effective date of 1 October 2006 (R4, tab 1 at 1-3). 1 The contract included a base year and four option years (id. at 3-15). There were four 1 All Rule 4 page numbers are to the Bates numbers. contract line item numbers (CLINs) for each year. CLIN OOOlAA required food mess attendant services for 12 months at a firm fixed-price (FFP) of$52,548.85 per month or $630,586.20. CLIN OOOlAB provided that the Air Force could order up to 1,680 hours of contingency cook I services for an FFP of $21.21 per hour. CLIN 000 lAC provided that the Air Force could order up to 1,120 hours of contingency cook II services for an FFP of$24.55 per hour. CLIN OOOlAD involved extended hours and is not directly involved in the entitlement case. (!d. at 3-5) 2. The contract incorporated the Federal Acquisition Regulation (FAR) 52.222-41, SERVICE CONTRACT ACT OF 1965, AS AMENDED (JUL 2005) clause (R4, tab 1 at 19). Pursuant to this clause, CP was obliged to pay its employees wages and fringe benefits provided in the CBA between the union and the predecessor contractor, Fresh Express (R4, tab 3 at 57-70). 3. The contract incorporated the FAR 52.222-43, FAIR LABOR STANDARDS ACT AND SERVICE CONTRACT ACT- PRICE ADJUSTMENT (MULTIPLE YEAR AND OPTION CONTRACTS) (MAY 1989) clause (R4, tab 1 at 19). This clause provides that the contract will be modified to increase wages and fringe benefits for each option year resulting from prior year changes in CBAs. The clause requires that the contractor submit a notice stating the amount claimed with supporting data such as payroll records and other data required by the contracting officer (CO). Option Year I (FY08) 4. Unilateral Modification No. P00004, dated 7 September 2007, exercised the first option year (CLIN 0002) extending the term of the contract to 1 October 2007 through 30 September 2008 subject to the availability of funds (R4, tab 7 at 105-06). 5. CP and the International Brotherhood of Electrical Workers, Local Union 415, entered into a CBA effective 1 October 2007 (R4, tab 12 at 139-54). 6. Bilateral Modification No. P00006, dated 31 October 2007, provided funding for the first option year (R4, tab 9 at 111 ). CLIN 0002AA was for eleven months, 1 October 2007 to 31 August 2008, at $54,125.32 per month for a total of$595,378.52 (id. at 113). CLIN 0002AB was for one month, 1 September to 30 September 2008, at $54,125.32 per month for a total of$54,125.32 (id. at 114). 2 7. Bilateral Modification No. P00009 was signed by Mr. Raul Luciani, President ofCP, and the government on 1 February 2008 (R4, tab 12 at 135). The reason for the 2 Modification No. P00008, effective 27 December 2007, increased funding for contingency cooks I and II (CLINs 0002AF and 0002AG) and included a release (R4, tab 11).