MANNING MAIL SERVICE, 1982-SCA-136 (Dep. Sec'y June 26, 1992)
CCASE:
J.R. MANNING & MANNING MAIL SERVICE
DDATE:
19920626
TTEXT:
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[1] U.S. DEPARTMENT OF LABOR
DEPUTY SECRETARY OF LABOR
WASHINGTON, D.C.
20210
DATE: June 26, 1992
CASE NO. 82-SCA-136
IN THE MATTER OF
JOY R. MANNING d/b/a
MANNING MAIL SERVICE,
RESPONDENT.
BEFORE: THE DEPUTY SECRETARY OF LABOR /FN1/
FINAL DECISION AND ORDER
This matter arises under the McNamara-O'Hara Service Contract
Act of 1965, as amended (MOSCA), 41 U.S.C. [secs] 351-358 (1988),
and the regulations thereunder, 29 C.F.R. Parts 4, 6, and 8 (1991).
On September 28, 1990, this case was remanded to the Chief
Administrative Law Judge (ALJ) for specified back wage
determinations. The ALJ's decision on remand, issued on May 14,
1991, assessed back wages owed for layover periods on Respondent's
Kingsbury, Texas, contract with the United States Postal Service.
Respondent thereafter petitioned for review of the ALJ's decision,
arguing that the MOSCA proceeding should be dismissed because the
Department of Labor comprised an improper forum for the contract
claims. [1]
/FN1/ The Deputy Secretary has been designated by the Secretary to
perform the functions of the Board of Service Contract Appeals
pending the appointment of a duly constituted Board. 29 C.F.R.
[sec] 8.0 (1991). [1]
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[2] Respondent argues specifically (1) that any back wages should
have been assessed by the Postal Service contracting officer, (2)
that the contracting officer failed to notify her of any wage
complaint, and (3) that she was denied the appeal process due her
under the contract. Respondent cites Basic Surface Transportation
Services Contract General Provision 2(a), which mandates that any
claim relating to the contract shall be resolved in accordance with
the Contract Disputes Act of 1978, 41 U.S.C. [secs] 601-613 (1988).
That law, which applies to executive agency procurement contracts,
directs an agency contracting officer to decide contractor claims
against the government and claims by the government against
contractors. The contracting officer's decision is subject to
review by an agency board of contract appeals and, ultimately, by
the United States Court of Appeals for the Federal Circuit. 41
U.S.C. [secs] 602, 605, 606, 607(g). Provision also exists for
United States Claims Court and district court proceedings. 41
U.S.C. [secs] 607(g)(2), 609(a). The Administrator, Wage and Hour
Division, Employment Standards Administration, responded to
Respondent's petition, arguing that Labor Department MOSCA
procedures properly applied to the instant case. /FN2/ [2]
/FN2/ As a factor in support of Department jurisdiction, the
Administrator points to "subparagraph (f)" of Contract General
Provision 2, which purportedly provides: "The authority of the
Contracting Officer under the Act does not extend to claims or
disputes which other agencies are expressly authorized by statute
or regulation to decide." Admin. Response at 5. I note that while
this language paraphrases a portion of Section 605(a) of the
Contract Disputes Act and appears in Respondent's petition [FN2
CONTINUED ON PAGE 3] (continued...) (...continued) and attachments,
it was not a term of the contracts at issue here. See Exhs. C-2,
C-3, C-4. (Section 605(a) provides, inter alia, that "[t]he
authority of this subsection shall not extend to a claim or dispute
for penalties or forfeitures prescribed by statute or regulation
which another Federal agency is specifically authorized to
administer, settle, or determine.") Arguably related language
appears at Contract General Provision 3, however, which reads:
"Law and Regulations Applicable. -- This contract and the services
performed thereunder are subject to applicable laws and regulations
made pursuant thereto. The Contractor shall faithfully discharge
all duties and trusts imposed upon him by such laws and
regulations." [END FN2]
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[3] Upon consideration of the record in its entirety, including
the parties' briefs, and the pertinent case law, I find that
jurisdiction to hear the instant "labor standards" claims lies with
the Department of Labor rather than with the contracting agency.
The following considerations are persuasive in this regard.
1. The Contract Terms
Respondent is correct that the Postal Service contract, in its
"basic," "general" provisions, states that any contract claim
"shall be resolved in accordance with" the Contract Disputes Act.
The contract also contains a section entitled "Additional General
Provisions for Service Contracts," which sets forth the contract's
MOSCA labor standards terms. The section preamble states:
This contract, to the extent that it is of the character
to which the Service Contract Act of 1965 . . . applies,
is subject to the following provisions and to all other
applicable provisions of the Act and the regulations of
the Secretary of Labor thereunder (29 C.F.R. Parts 4 and
1925). [3]
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[4] Included in the expressly applicable Department regulations is
Section 4.6(r), 29 C.F.R., which states:
Disputes concerning labor standards. Disputes arising out
of the labor standards provisions of this contract shall
not be subject to the general disputes clause of this
contract. Such disputes shall be resolved in accordance
with the procedures of the Department of Labor set forth
in 29 C.F.R. parts 4, 6, and 8. Disputes within the
meaning of this clause include disputes between the
contractor (or any of its subcontractors) and the
contracting agency, the U.S. Department of Labor, or the
employees or their representatives.
Accordingly, in this "specific Disputes" provision of the contract,
Respondent agreed that disputes about labor standards would not be
subject to the general disputes clause, i.e., Contract General
Provision 2(a). As recognized by the court in Emerald Maintenance,
Inc. v. U.S., 925 F.2d 1425 (Fed. Cir. 1991),
[T]he specific Disputes provision, stating that disputes
arising out of labor standards are not to be subject to
the general disputes clause, but are to be resolved in
accordance with the procedures of the Department of
Labor, predominates over the general provision that the
Board has jurisdiction to decide any appeal from a
contracting officer. It is well established that the
specific governs over the general, and the language of
these provisions compels the result.
Id. at 1429.
This construction comports with the Contract Disputes Act. The
specific Disputes provision of the contract represents an
allocation of authority distinct from the authority of the agency
[4]
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[5] contracting officer under the Act, which expressly does
extend to claims or disputes for statutory or regulatory penalties
or forfeitures subject to recovery by another Federal agency. 41
U.S.C. [sec] 605(a). See n.2, supra. These disputes conceivably
include contested MOSCA enforcement remedies, i.e., ineligibility
for contract award, liability for wage underpayment, and contract
withholdings. 41 U.S.C. [secs] 352(a), 354. Cf. Mark Smith Const.
Co. Inc. v. United States, 10 Cl. Ct. 540, 547 (1986) (While
Davis-Bacon Act authorization to withhold contract payments in
amount equal to wage deficiency "would appear to constitute a sort
of 'forfeiture' provision," resolution of issue not essential to
case decision.) Resolving any claim relating to the contract "in
accordance with" the Contract Disputes Act, as contemplated under
Contract General Provision 2(a) (general disputes clause), would
require observing that Act's limitation on the contracting
officer's jurisdiction.
2. The Case Precedent
The courts that have addressed this issue have held that
"[t]he [specific] Disputes provision of the contracts clearly
provides that disputes arising out of the labor standards
provisions of the contracts are not to be subject to the Contract
Disputes Act, but are to be resolved 'in accordance with the
procedures of the Department of Labor' (which clearly means
[*] by [*] the department)." Emerald Maintenance, Inc. v. U.S. 925
F.2d at 1428 [*](emphasis in original)[*] (Davis-Bacon Act),
following Collins [5]
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[6] Intern, Service Co. v. United States, 744 F.2d 812, 814-815
(Fed. Cir. 1984) (MOSCA). Accord, Burnside-Ott Aviation Training
Center v. United States, 24 Cl. Ct. 553, 557-563 (1991) (MOSCA).
A further determination in those cases concerned whether the
particular claims arose out of the labor standards provisions of
the contracts. That issue does not obtain here where Respondent
argues that the MOSCA enforcement case charging her with violations
of the labor standards should have been heard by the contracting
agency.
Accordingly, the ALJ's May 14, 1991, Decision and Order on
Remand IS AFFIRMED.
SO ORDERED.
[Delbert L. Spurlock, Jr.]
Deputy Secretary of Labor
Washington, D.C. [6]
