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<![CDATA[
CCASE:
Aquasis Services, Inc.
DDATE:
19860618
TTEXT:
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[1] THE UNDER SECRETARY OF LABOR
WASHINGTON, D.C.
20210
In the Matter of
Aquasis Services, Inc. Case No. 85-SCA-WD-3
DECISION OF THE UNDER SECRETARY
This matter is before me pursuant to the McNamara-O'Hara
Service Contract Act of 1965, as amended (SCA), 41 U.S.C. [secs]
351-358 (1982), and the rules and regulations thereunder, 29 C.F.R.
4.55 and Part 8 (1985). /FN1/ Petitioner seeks review of Wage
Determination No. 83-177 (Rev. 1) dated May 9, 1983, issued by the
Administrator of the Wage and Hour Division. A request for review
and reconsideration was submitted to the Administrator on April 3,
1985, and was denied as being untimely on April 29, 1985.
Aquasis was performing on contract No. F22600-83-B0023 for
operation of the base information transfer system and the
publication distribution office at Keesler Air Force Base,
Mississippi, for the period beginning October 1, 1983, and ending
September 30, 1984. Contained in the contract was [1]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN1/ Section 8.0 of 29 C.F.R. provides that the Secretary's
designee shall perform the functions of the Board of Service
Contract Appeals during the interim prior to the appointment of a
duly constituted Board. On February 24, 1984, the Secretary
assigned this responsibility to the Under Secretary. [1]
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[2] Wage Determination No. 83-177 (Rev. 1) dated May 9, 1983, which
required supply clerks and motor vehicle operators to be paid $6.58
and $6.15 per hour, respectively, plus fringe benefits. On
September 12, 1984, the Air Force exercised the option to extend
the contract from October 1, 1984 through September 30, 1985.
The Associate Solicitor asserts that the Assistant
Administrator /FN2/ properly denied Aquasis's request for review
and reconsideration on the grounds of untimeliness based on 29
C.F.R. [sec] 4.55(a)(1) (1985) which provides in pertinent part
that:
Any interested party affected by a wage determination
issued under Section 2(a) of the Act may request review
and reconsideration by the Administrator.... In no
event shall the Administrator review a wage determination
or its applicability ... [*] later than 10 days before
commencement [*] of a contract in the case of a
negotiated procurement, [*] exercise of a contract
option[*] or extension. This limitation is necessary in
order to ensure competitive equality and an orderly
procurement process. [*](emphasis supplied)[*].
Aquasis has not explained why it delayed filing its request.
Although the record indicates that petitioner attempted to
informally resolve the issue via phone calls and letters to the
Wage and Hour Division, I agree with the Associate Solicitor [2]
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
/FN2/ The position of Wage and Hour Administrator was vacant from
March 4, 1985 until June 2, 1986. [2]
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[3] that, the Administrator, having officially notified the
contracting agency on May 3, 1984, that WD 83-177 (Rev. 1)
contained the applicable wage rates for the contract period
October 1, 1984 through September 30, 1985, was without authority
to grant Aquasis's request to replace it with a different wage
determination after the contract period had begun. Id. Thus,
the Administrator's decision to deny petitioner's request for
reconsideration as untimely was appropriate.
Having affirmed the Administrator's decision on the issue
of timeliness, it is not necessary to decide Petitioner's
contention that the contracting agency failed to follow the
regulations in filing its notice.
I note, however, that under the implementing regulations there
is no authority at this level to review WD-83-177 (Rev. 1) as it
applies to contract No. F22600-83-C-0053 in order to grant the
remedy requested. Petitioner specifically requests "relief for
those employees affected by this decision in the form of the
correct wage determination incorporated into the current option
period and made retroactive to the beginning of the option period
- 01 October 84." The regulations, at 29 C.F.R. [sec] 8.6(b)
provide in pertinent part that:
Except as provided in paragraphs (c) and (d) of this
section, the Board will not review a wage determination
after award, exercise of option, or extension of a
contract, unless such procurement action was taken
without the wage determination required pursuant to
[secs] 4.4 and 4.5 of Part 4 of this title. [3]
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[4] In this case the requirement that a wage determination be
issued was met. However, even if the petition for review had
been filed prior to the exercise of the option, Petitioner's
request that a revised wage determination be incorporated into
the current option period and made retroactive to October 1,
1984, could not be granted because "[t]he Board's decision shall
not affect the contract after such award, exercise of option, or
extension." 29 C.F.R. 8.6(d). See Northwest Forest Workers
Association, Case No. 85-SCA-10, Decision of the Under Secretary,
issued October 10, 1985, slip op. at 6.
For the above stated reasons, the petition for review is
hereby DISMISSED.
SO ORDERED.
[Dennis E. Whitfield]
Under Secretary of Labor
Dated: JUNE 18 1986
Washington, D.C. [4]
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