CBCA 5084-R

RECONSIDERATION GRANTED; DISMISSED FOR LACK OF JURISDICTION: August 3, 2016 CBCA 5084-R SECTEK, INC., Appellant, v. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, Respondent. Daniel B. Abrahams and Aidan J. Delgado of Brown Rudnick LLP, 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. filed a timely motion for relief from our decision denying its appeal, SecTek, Inc. v. National Archives & Records Administration, CBCA 5084, 16-1 BCA ¶ 36,403. SecTek argues for the first time, among other things, that we should have dismissed its appeal for lack of jurisdiction. See Board Rule 27(a)(5) (48 CFR 6101.27(a)(5) (2016)). We agree and accordingly grant reconsideration, rescind our merits decision, and dismiss the appeal. CBCA 5084-R 2 Background Familiarity with our prior decision is assumed. In September 2015, SecTek submitted a certified claim under the contract’s Disputes clause, seeking a price adjustment pursuant to Federal Acquisition Regulation (FAR) clause 52.222-43(d), Fair Labor Standards Act and Service Contract Act–Price Adjustment (Multiple Year and Option Contracts) (48 CFR 52.222-43(d) (2014)), for increased labor costs under a collective bargaining agreement (CBA) that SecTek signed with its unionized employees in June 2015. In November 2015, the contracting officer issued a “determination” that the CBA would not be incorporated in SecTek’s fixed-price contract as a wage determination pursuant to the Service Contract Act, 41 U.S.C. §§ 6701-6707 (2012). SecTek did not consider this response a decision on its claim, and it filed this appeal under the Contract Disputes Act (CDA) from a deemed denial. See 41 U.S.C. § 7103(f)(5). Although the contracting officer later issued a decision (or a revised decision) on SecTek’s claim, neither party questioned our CDA jurisdiction. The Board resolved the appeal on cross-motions for summary relief. Discussion SecTek now points out that FAR clause 52.222-41, Service Contract Labor Standards, which was incorporated in the contract, stated that disputes about labor standards must be resolved pursuant to Department of Labor (DOL) disputes procedures, “not [under] the Disputes clause,” 48 CFR 52.222-41(t), and that the Court of Appeals for the Federal Circuit and at least one of our predecessor boards have held that disputes about applicable labor standards and wage determinations lie within the exclusive jurisdiction of DOL. See Emerald Maintenance, Inc. v. United States, 925 F.2d 1425, 1429 (Fed. Cir. 1991) (“[T]he specific Disputes provision, stating that disputes arising out of labor standards are not to be subject to the general disputes clause, but are to be resolved in accordance with the procedures of [DOL], predominates over the general provision that the Board has jurisdiction to decide any appeal from a contracting officer.”); Kass Management Services, Inc., GSBCA 8819, 88-3 BCA ¶ 20,891, at 105,619 (“Queries by appellant as to the correct wage determination applicable to its contracts . . . must be addressed to the DoL.”). SecTek posits that JL Associates, Inc. v. General Services Administration, GSBCA 11922, 93-3 BCA ¶ 25,939, in which the General Services Board of Contract Appeals (GSBCA) granted the agency’s motion to dismiss for lack of jurisdiction, is “remarkably similar” to this appeal. We substantially agree. JL Associates differed slightly from this appeal, in that the issue there was when the CBA was executed, rather than, as here, what the CBA’s terms were. The contracting officer received an unsigned CBA with typographical errors before the start of the option year and a signed, “corrected” copy during the option period. Believing that the CBA did not exist before the option period, he did not incorporate CBCA 5084-R 3 it in the contract or forward it to DOL to obtain a wage determination. See 48 CFR 22.1008- 1(d)(2)-(3) (contracting officer may either “prepare a wage determination referencing” an incumbent contractor’s CBA, or “request that [DOL] make the . . .