General Services Administration, Region
3, ARB No. 97-052 (ARB Nov. 21, 1997)
U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB Case No. 97-052
DATE: Nov. 21, 1997
In the Matter of:
GENERAL SERVICES
ADMINISTRATION, REGION 3
With respect to application of
Section 4(c) of the McNamara-O'Hara
Service Contract Act to Contract
No. GS-03P-95-DWC-0035, Armed Guard
Services, Health Care Financing Administration,
Woodlawn, Maryland
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
DECISION AND ORDER
This case is before the Board on the petition of the General Services
Administration, Region 3 (GSA), seeking review of the November 25, 1996 final ruling issued
by the Administrator, Wage and Hour Division, pursuant to the McNamara-O'Hara Service
Contract Act of 1965, as amended, 41 U.S.C. §351, et seq. (SCA). See 29
C.F.R. §§4.189, 8.1(b)(6), 8.7(b) (1996). The GSA challenges the
Administrator's ruling that Section 4(c) of the SCA, 41 U.S.C. §353(c) (1994), applies
to Contract No. GS-03P-95-DWC-0035 for armed guard services at the Health Care Financing
Administration (HCFA) facility in Woodlawn, Maryland. For the reasons set forth below, the
final ruling of the Administrator is affirmed.
1 The foregoing decision was issued
by the Deputy Secretary prior to the establishment of the Board of Service Contract Appeals on July 10,
1992. See Secretary's Order 3-92, 57 Fed. Reg. 33,414 (July 28, 1992); 29 C.F.R.
§8.0 (1991). For purposes of review of matters arising under the SCA, the Board of Service
Contract Appeals was the predecessor to the Administrative Review Board. See Secretary's
Order 2-96, 61 Fed. Reg. 19978 (May 3, 1996).
2 Subparts A, C and D of Part 8
are pertinent to this appeal of the "final action[] of the Wage-Hour Administrator" under 29
C.F.R. §8.1(b)(6). See 29 C.F.R. Part 8. Subpart B of Part 8 concerns Review of
Wage Determinations and is thus not controlling in this case.
3 Section 4(a) of the SCA
incorporates Sections 4 and 5 of the Walsh-Healey Act, as amended, 41 U.S.C. §§38, 39,
41 U.S.C. §353(a); see United States v. Deluxe Cleaners and Laundry, Inc., 511 F.2d
926 (4th Cir. 1975). The Secretary is expressly authorized "to prescribe rules and
regulations" as he finds necessary to the administration of the statute. 41 U.S.C. §38.
4 As pointed out by the GSA in
response to the dismissal motion, the Union erroneously relies upon 29 C.F.R. §7.18, which is
found in 29 C.F.R. Part 7, and which pertains to practice before the Board in regard to Federal and
Federally assisted construction contracts, Motion to Dismiss Appeal at 1.
(d) Proof of service. Papers filed
with the Board shall contain an acknowledgement of service by the person
served or proof of service in the form of a statement of the date and the manner
of service . . . .
(e) Service upon the Department of Labor
and other interested parties. A copy of all documents filed with the
Board shall be served upon . . . and all other interested parties.
29 C.F.R. §8.10(d), (e).
Section 8.15(a) provides, in pertinent part:
Except as otherwise provided in this part, any application for an
order or other relief shall be made by motion. Except when made orally before
the Board, motions shall be in writing and shall be accompanied by proof of
service on all other parties.
Section 8.15(b) provides:
Requests for extension of time as to the filing of papers or oral presentation
shall be in the form of a motion under paragraph (a) of this section.
29 C.F.R. §8.15 (1996).
6 Section 8.11(a) directs the Board,
following receipt of a petition of review, "to notify the parties known or believed to be interested
in the case." 29 C.F.R. §8.11(a); cf. 29 C.F.R. §8.2(b) (defining
"interested party" to include employees, labor organizations, contractors, industry
associations, contracting agencies and "any other party whom the Board finds to have a sufficient
interest . . . ," for purposes of appeals of wage determinations to the Board under Subpart B of
Part 8, Title 29).
7 We note that the regulations
concerning enforcement proceedings under the SCA, Subpart B of Part 6, Title 29, do provide for
enlargements by the Administrative Review Board of the time period in which a party may file a petition
for review of a decision issued by an Administrative Law Judge. 29 C.F.R. §6.20. Part 6
concerns enforcement actions only, however, and does not address an appeal from a ruling of the
Administrator as is involved in this case. See 29 C.F.R. §6.1.
8 The foregoing rulings were issued
by the Deputy Secretary and Secretary, respectively, prior to the establishment of the Board of Service
Contract Appeals. See n.1 supra.
9 On March 28, 1997, the Union
filed its brief opposing the petition for review; the arguments advanced by the Union in that brief have
been given careful consideration in our review of the petition filed by the GSA.
10 The contract that is in the
record as Exhibit 5 represents the substance of the contract that was awarded to Scotlandyard, as
Contract No. GS-03P-95-DWC-0002, and the contract that was later awarded to Master, and designated
as Contract No. GS-03P-95-DWC-0035. Pet. for Rev. at 7.
11 On January 30, 1996,
Master entered into a CBA with the Union, the terms of which stated that it would be in effect for the
period from September 1, 1995 until May 31, 1996. Exh. 8.
12 The GSA contract for the
HCFA facility details the corrective actions to be taken when occupants or visitors are observed
violating facility rules and regulations; actions to be taken are implied by the corresponding SSA
contract item, when read in conjunction with the duties to maintain law and order in the assigned area
and to prepare reports regarding unusual incidents and unlawful acts. Exh. 1 at 10, 11; Exh. 5 at 0010.
13 The Wage Determination
dated April 6, 1993, covers Baltimore County; the Wage Determination dated December 23, 1993,
covers, in addition to Baltimore County, Anne Arundel, Howard, Carroll, Harford Counties and
Baltimore City. Exhs. 1B, 4, 6; see 29 C.F.R. §4.54(a).
14 Section 4.163(h)
summarizes the restrictions on the applicability of Section 4(c) thus:
Other than the requirement that substantially the
same services be furnished, the requirement for arm's-length negotiations and
the provision for variance hearings, the Act does not impose any other
restrictions on the application of section 4(c).
29 C.F.R. §4.163(h).
15 The GSA quotes from
Section 4.145(a), as follows:
In other cases a service contract, entered into for
a specified term by a Government agency may contain a provision such as an
option clause under which the agency may unilaterally extend the contract for
a period of the same length or other stipulated period. Since the exercise of the
option results in the rendition of services for a new or different period not
included in the term for which the Government is obligated to pay under the
original contract in the absence of such action to extend it, the contract for the
additional period is a wholly new contract with respect to application of the
Act's provisions and the regulations thereunder (see Section 4.143(b)).
The GSA quotes from Section 4.143(b), as follows:
Also, whenever the term of an existing contract
is extended pursuant to an option clause or otherwise, . . . the contract
extension is considered to be a new contract for the purpose of the application
of the Act's provisions.
Pet. for Rev. at 16-17.
16 As has been frequently
noted by the Board, it is axiomatic that we are bound by the implementing regulations promulgated by
the Secretary. See, e.g., In re Fort Hood Barbers Ass'n, ARB Case No. 96-181, Nov. 12,
1996, slip op. at 3 n.2; see also 29 C.F.R. §8.1(b).
17 The regulation at 29
C.F.R. §4.55 was redesignated as Section 4.56 in 1996. See 61 Fed. Reg. 68664
(Dec. 30, 1996).