1 The Petition for Review
was filed December 8, 1997, and was directed to the Board of Service Contract Appeals (BSCA).
On May 3, 1996, the BSCA was abolished pursuant to Secretary's Order 2-96 and its duties were
delegated to the Administrative Review Board. 61 Fed. Reg. 19978.
2 Petitioner states
that the letter was received on November 24, 1997. Petitioner's Statement, ¶4, Attachment
2.
3 The
Administrator also contends that there has been no final agency ruling in this matter, and that the
Petition for Review should be dismissed for that reason. Because we rule that the Petition was
filed untimely, it is not necessary for us to address the Administrator's finality issue. But
see Diversified Collection Services, Inc., ARB Case No. 98-062, ARB Order, May 8, 1998,
slip op. at p. 3.
4 In this regard,
Petitioner directs our attention to a September 12, 1995 Wage and Hour Division letter
(Petitioner's Statement, Attachment 6) which refers to an August 17, 1995 letter from Petitioner
concerning the wage determination dispute for the USMS contract. The September 12 letter
references a continuing investigation of the USMS contract by a Wage and Hour Division Regional
and District Office. The nature of that investigation is not specified.
5 In support of the
Administrator's argument that review of the disputed wage determination is barred by the
untimeliness of Petitioner's request, counsel cites the BSCA's decision in Review and
Reconsideration of Wage Determination 90-1029 (Rev. 6) as Applied to Service Contracts in
Jasper County, Missouri, BSCA Case No. 94-10, Dec. 30, 1994 (Jasper Co.).
That case, however, concerned the timeliness of a challenge to a wage determination which had
been substituted by the Wage and Hour Division for another wage determination improperly
included in a service contract. Although there is no time limitation specified in the regulation
allowing for post-commencement substitution -- 29 C.F.R. §4.5(c)(2) -- the BSCA held that
challenges to a substituted wage determination must be commenced within "some reasonable
time limitation" after commencement of the contract. Id., slip op. at p. 3. Thus,
while the Jasper Co. decision is not strictly on point with the facts of the instant
matter, it does provide general guidance on the question of timeliness of wage determination
challenges.