North Warning System (NWS) Alaskan Communications
Systems, ARB No. 96-166 (ARB Sept. 25, 1996)
U.S. Department of Labor
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB Case No. 96-166
DATED: September 25, 1996
In the Matter of:
NORTH WARNING SYSTEM (NWS)
ALASKAN COMMUNICATIONS SYSTEMS
CONTRACT NO. F19628-92-C-0176
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
ORDER OF DISMISSAL WITH PREJUDICE
This matter is before the Board pursuant
to the Davis-Bacon
Act, as amended (DBA) and 29 C.F.R. Part 7. On September 18,
1996, the Administrator, Wage and Hour Division (Administrator)
filed a motion to dismiss this case with prejudice. In support
of the motion to dismiss with prejudice, counsel for the
Administrator has averred the following facts, which are
supported by the record before the Board.
On June 13, 1996, the Wage and Hour
Division issued a ruling
letter to the effect that the DBA applied to construction work
under the above referenced contract. The ruling letter was
issued to the contracting agency, the U.S. Department of the Air
Force, Electronic Systems Center (Air Force or Petitioner). On
July 12, 1996, the Air Force filed a petition for review with
this Board, seeking review of the Wage and Hour Division's June
13, 1996 final ruling letter. At that time, the Air Force
requested an extension of time to and including August 21, 1996
within which to file a statement in support of the Petition for
Review. The Board granted this request.
By August 21, 1996, Petitioner had not
filed a statement in
support of the Petition for Review. Rather, on that date, the
Air Force sent a memorandum to the Wage and Hour Division. The
substance of that memorandum was that the Air Force refused to
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comply with the Wage and Hour Division's ruling letter, which, as
noted, found that construction work under the contract was
covered by the DBA and, further, directed the Air Force to
retroactively incorporate the prevailing wage provisions of the
DBA in the contract.
Counsel for the Administrator avers
that on September 6,
1996, the Office of the Solicitor was orally advised by
Petitioner that the August 21, 1996 correspondence did not
constitute an appeal of the June 13, 1996 ruling letter.
Moreover, it is averred, Petitioner orally advised counsel for
the Administrator that the Air Force did not intend to appeal the
ruling.
On September 10, 1996, counsel for the
Air Force confirmed
the content of the September 6, 1996 conversation, stating in a
letter to counsel for the Administrator that:
. . . the Air Force respectfully declines to amend the
NWS Alaskan Communication System contract to
retroactively incorporate Davis[-]Bacon Act provisions
which the Air Force has reasonably determined are not
applicable.[1]
Based on the foregoing procedural history in
this matter, the Board deems the Air Force to have abandoned its
appeal. Accordingly, it is hereby
Ordered that the Board's Notice of
Appeal and Order Establishing Briefing Schedule is rescinded.
It is, further Ordered that this matter is dismissed with
prejudice and that the Wage and Hour Division's ruling letter
dated June 13, 1996 (copy attached) is the final agency action of
the United States Department of Labor.
