ASBCA 61049

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Hallmark-Phoenix 3, LLC ) ASBCA No. 61049 ) Under Contract No. W9124J-08-C-0026 ) APPEARANCES FOR THE APPELLANT: Bryant S. Banes, Esq. Sean D. Forbes, Esq. Neel, Hooper & Banes, P.C. Houston, TX APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney ChristinaLynn E. McCoy, Esq. Trial Attorney OPINION BY ADMINISTRATIVE JUDGE PAGE Appellant seeks to recover $63,013.98 for increased wages and fringe benefit costs associated with the United States Department of Labor (USDOL) requirement that it pay its employees in accordance with wage determination (WD) 2005-2049, Revision 16 (Rev. 16) during the eight-month and three-day extension period of its contract with the government. This amount is the difference in costs between WD 2005-2049, Revision 8 (Rev. 8), which was the applicable wage determination at the time of contract award and Rev. 16, the wage determination applicable during this portion of contract performance, to which the government was obligated to adjust the contract, but did not. The parties have elected to proceed pursuant to Board Rule 12.2. 1 We sustain the appeal. FINDINGS OF FACT The Contract 1. On 29 September 2008, the Mission and Installation Contracting Command at Fort Sam Houston, Texas (MICC-FSH) and Hallmark-Phoenix 3, LLC (appellant, HP3, or the contractor) entered into Contract No. W9124J-08-C-0026 for logistics services operations in support of the United States Army Garrison at the Presidio of Monterey in California (USAG POM) (R4, tab 1). 2 The period of performance 1 A decision under Rule 12.2 shall have no value as precedent, and in the absence of fraud, shall be final and conclusive and may not be appealed or set aside. 2 MICC-FSH and USAG POM are referred to collectively as the "government." included a 90-day, phase-in period (id. at 24 3), plus a nine-month base period and four 12-month option years (id. at 1-5). The firm-fixed-price contract contained contract line item numbers (CLINs) at unit prices for supplies/services, logistics plans and operations, transportation, and maintenance; a separate CLIN for contractor manpower reporting was at no cost to the government (id. at 2-18). The contractor was to be paid a total of $1,713,346 for the base year (id. at 1). 2. Among standard contract clauses is FAR 52.217-8, OPTION TO EXTEND SERVICES (Nov 1999), which provides: The Government may require continued performance of any services within the limits and at the rates specified in the contract. These rates may be adjusted only as a result of revisions to prevailing labor rates provided by the Secretary ofLabor. The option provision may be exercised more than once, but the total extension of performance hereunder shall not exceed 6 months. The Contracting Officer [CO] may exercise the option by written notice to the Contractor within 15 calendar days before the contract expires. (R4, tab 1 at 114) (Emphasis added) 3. Among standard contract clauses incorporated by reference was FAR 52.233-1, DISPUTES (JUL 2002)-ALTERNA TE I (DEC 1991) (R4, tab 1 at 111 ). Also incorporated by reference is FAR 52 .222-41, SER VICE CONTRACT ACT OF 1965 (Nov 2007). It provides, in pertinent part: (c) Compensation. ( 1) Each service employee employed in the performance of this contract by the Contractor or any subcontractor be paid not less than the minimum monetary wages and shall be furnished fringe benefits in accordance with the wages and fringe benefits determined by the Secretary ofLabor, or authorized representative, as specified in any wage determination attached to this contract. 3 Where applicable, we adopt pagination added by the parties to Rule 4 file documents. 2  (d) Obligation to Furnish Fringe Benefits.