In re: Application of Wage Determination
No. 1996-0460 to pilots contracted to work
at Randolph AFB, TX., on Contract No.
F14691-00-D-0002 with the United States
Department of the Air Force.
1 This appeal has been assigned to a panel of two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19, 978 §5 (May 3, 1996).
2 As calculated by the employees, the wage inflation rates had averaged approximately 3% per year; and applying that rate cumulatively over six years would result in an overall wage increase of 19.4%.
In the case of procurements entered into pursuant to negotiations (or in the case of the execution of an option or an extension of the initial contract term), revisions received by the agency after award (or execution of an option or extension of term, as the case may be) of the contract shall not be effective provided that the contract start of performance is within 30 days of such award (or execution of an option or extension of term). If the contract does not specify a start of performance date which is within 30 days from the award, and/or if performance of such procurement does not commence within this 30-day period, the Department of Labor shall be notified and any notice of a revision received by the agency not less than 10 days before commencement of the contract shall be effective.
29 C.F.R. § 4.5(a)(2).
4 On December 7, 2002, the U.S. Senate confirmed Tammy Dee McCutcheon as Administrator of the Wage and Hour Division. Consequently, subsequent references will be made to the "Administrator," rather than the "Acting Administrator."
5 The Secretary of Labor has delegated to the ARB the authority to issue final agency decisions in cases arising under the SCA. Secretary's Order 2-96, 61 Fed. Reg.19978 (May 3, 1996). Secretary's Order 2-96 also provides, "the Board shall not have jurisdiction to pass on the validity of any portion of the Code of Federal Regulations which has been duly promulgated by the Department of Labor and shall observe the provisions thereof, where pertinent, in its decisions." Id. at 19979.
6 We note that both EG&G and the Administrator apparently have construed the relevant 10-day period as the 10-day period before the performance on the option period begins rather than the 10-day period before the date on which the contracting agency exercises the option on the contract. See Adm. Mot. at 6; Pet. Opp. at 3. In Delta Associates, LTD, 89-SCA-WD-1 (Dep. Sec'y Aug. 9, 1989), the Administrator took the position that the relevant period was the 10-day period prior to the exercise of the option (in that case October 28, 1988), rather than, as argued by the contractor, the 10-day period before performance on the option began (in that case, December 1, 1988). Slip op. at 3-4. In Delta Associates, the contractor's request, filed on November 22, 1988, was untimely under either interpretation because under the Administrator's interpretation, the Administrator was precluded from acting upon a request for review and reconsideration after October 18, 1988, and under the contractor's interpretation, the Administrator was precluded from acting after November 21, 1998. Therefore, the Deputy Secretary found it unnecessary to determine the relevant triggering event for the 10-day cut-off. The Administrator, in this case, has not explained her rationale for apparently abandoning the previously held interpretation of 29 C.F.R. § 4.56(a)(1). In any event, given our decision in this case, it is unnecessary for us to resolve this issue of regulatory interpretation at this time.
7 EG&G states that its contract required the Air Force to provide written notice of its intent to exercise the option on September 15, 2001. Pet. Opp. at 4.
8 Recognizing this limitation EG&G states, "[i]t may well be, given the limits of the ARB's authority, that any decision of the Board will have only prospective effect." Pet. Opp. at 7.