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<![CDATA[
CCASE:
CANTEEN FOOD AND VENDING
DDATE:
19921130
TTEXT:
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[1] BOARD OF SERVICE CONTRACT APPEALS
UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D.C.
In the Matter of:
CANTEEN FOOD AND VENDING BSCA Case No. 92-34
SERVICE
BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Anna Maria Farias, Member
DATED: November 30, 1992
DECISION OF THE BOARD OF SERVICE CONTRACT APPEALS
This case is before the Board of Service Contract Appeals on
the petition of Canteen Food and Vending Service ("Petitioner" or
"Canteen"), seeking review of the July 10, 1985 final ruling of the
Deputy Administrator of the Wage and Hour Division. The case arose
pursuant to Petitioner's request to the Administrator for a
variance hearing pursuant to Section 4(c) of the McNamara-O'Hara
Service Contract Act of 1965, as amended (41 U.S.C. [sec] 351 et
seq., "SCA"), a reconsideration of Wage Determination ("WD") 79-574
(Rev. 4) to Contract No. JFBI 85-048 for food services at the J.
Edgar Hoover Building in Washington, D.C., and, alternatively, a
request for an administrative opinion finding that Canteen's
current collective bargaining agreement ("CBA") with the Hotel and
Restaurant Employees' Union Local 25, AFL-CIO ("Local 25") was in
compliance with the SCA. For the reasons stated below, the
petition for review is dismissed as moot.
I. BACKGROUND
The Federal Bureau of Investigation ("FBI") solicited bids in
early 1985 to provide for food and vending services at its national
headquarters, the J. Edgar Hoover Building. The wage determination
included in the solicitation reflected the CBA between the then-
incumbent contractor, Guest Services, Inc. ("GSI"), and Local
25.[1]
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[2] Canteen was awarded the contract and began performance in
April 1985. Subsequently, Canteen negotiated a new CBA with Local
25, covering the recently acquired FBI contract. In the
negotiations, Canteen offered to retain all Local 25 members who
were employed under the GSI contract. In exchange for this offer,
Local 25 agreed to a two-tier wage package which provides that all
former GSI employees continuing under the contract with Canteen are
to receive their GSI agreement wage rates; however, employees newly
hired under the contract by Canteen were agreed by local 25 to be
due a wage rate $.70 lower than those contained in the GSI
agreement and incorporated in WD No. 79-574 (Rev. 4) pursuant to
section 4(c) of the SCA.
On June 7, 1985, Canteen submitted a multiple request to the
Administrator. First, a variance hearing was sought on the ground
that the GSI wage rates were at substantial variance from those
actually prevailing in the locality pursuant to section 4(c) of the
SCA and its accompanying regulation, 29 C.F.R. 4.10. Second, a
prevailing wage redetermination was sought, pursuant to 29 C.F.R.
4.55(a), to establish that the new agreement's lower rates were
applicable to all employees under the FBI contract. Alternatively,
Canteen sought an administrative ruling that the newly negotiated
two-tier wage agreement was in compliance with the successorship
requirements of section 4(c).
The Deputy Administrator denied the requests for a variance
hearing or a wage redetermination on the ground that neither
request was timely made and further ruled that all employees
working on the FBI contract were legally required to be paid no
less than the wage rates and fringe benefits under the
predecessor's agreement. Canteen filed this petition on July 30,
1985, seeking the remedies denied by the Deputy Administrator.
II. DISCUSSION
Regarding the Deputy Administrator's ruling denying
Petitioner's request for a hearing the Board finds that the ruling
was in full accord with the applicable laws and regulations and,
therefore, a proper exercise of his discretionary authority under
the SCA. Canteen acknowledges that the request for a hearing was
untimely but seeks an exception allowed by 29 C.F.R. 4.10(b)(3)
when the Administrator finds that "extraordinary circumstances"
exist. The Deputy Administrator, in his discretion, found no
extraordinary circumstances and our review of the record disclosed
no basis for disturbing that ruling.
Petitioner's request for reconsideration of the wage
determination was pursuant to section 4.55(a) which provides that
"[i]n no event shall the Administrator review a wage determination
or its applicability after the opening of bids in the case of a
competitively advertised procurement . . . ." Canteen [2]
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[3] again acknowledges that its request was untimely but seeks
an exception. The Board finds that the Deputy Administrator's
ruling must be affirmed as his denial was in accordance with the
mandatory language of the applicable regulations.
Our review of the record shows that the FBI contract, /FN1/
the CBA and the wage determination in this matter have long been
concluded. The CBA and the collectively bargained rates at issue
in this matter expired in 1988. The wage determination reflecting
those CBA rates would also have expired by this time. There can be
no retroactive effect to a finding of substantial variance nor can
a contract be affected after award, exercise of option, or
extension. 29 C.F.R. 4.163(c); 8.6(d). Given the passage of time
and expiration of the applicable wage determination, contract and
CBA rates, the Board can provide no remedy as sought in the
petition for review. See, In the Matter of Northern Virginia
Service Corporation, BSCA Case No. 92-18 (Aug. 26, 1992).
The Board finds the time delays unfortunate. In the future,
the Board will place any substantial variance matter on its
expedited decision calendar at the request of a party or interested
person or sua sponte.
For the foregoing reasons, this matter is hereby dismissed as
moot. No party or interested person has filed a motion for
dismissal of this matter on mootness grounds. Therefore, for good
cause shown, any party or interested person may seek the Board's
reconsideration of this dismissal within thirty days of the date of
this decision.
BY ORDER OF THE BOARD:
Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Anna Maria Farias, Member
Charles E. Shearer, Jr.
Chairman [3]
/FN1/ Although the record does not specifically indicate the
expiration date of the initial contract, options or extensions, it
is assumed that a contract awarded in April 1985 would now be
completed. [3]
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