U.S. Department of Labor Administrative Review Board
200 Constitution Ave, NW
Washington, DC 20210
ARB CASE NO. 98-141
and
ARB CASE NO. 98-027
(Formerly Case No. 97-086)
DATE: September 2, 1998
In the Matter of:
BIOSPHERICS, INC.
In re: General Services Administration
Contract Nos. GS00K90AFC2893 and
GS00K94AFD2465, Cumberland,
Allegheny County, Maryland
ORDER
These cases are before this Board pursuant to the McNamara-O'Hara Service
Contract Act of 1965, as amended, 41 U.S.C. §351, et seq. (1994) (SCA), and the
regulations at 29 C.F.R. Part 8 (1998). Petitioner Biospherics, Inc. has filed a Second Petition for
Review, docketed as ARB Case No. 98-141, and several preliminary motions -- Motion to
Consolidate, Motion for Protective Order, Motion to Strike Brief, and Motion for Hearing -- which
the Board will address seriatim before establishing the briefing schedule in ARB Case No.
98-141.
A. Biospherics' Motion to Consolidate is granted.
In its Second Petition for Review Biospherics seeks review of the June 22,
1998 letter issued by the Wage and Hour Division regarding the applicability of wage determinations
to the above-described contracts. Copies of the Second Petition for Review (exhibits not included)
and the June 22, 1998 letter are attached. Biospherics asks that the Board consolidate this Second
Petition for Review with an earlier petition that it filed in ARB Case No. 98-027, which is pending
[Page 2]
review by the Board. In Case No. 98-027 Biospherics seeks review of Wage and Hour's February
14, 1997 decision denying conformance rates that it had requested for certain wage categories under
the above-referenced contracts. No opposition to Biospherics' request for consolidation has been
filed.
In view of the common facts and related issues presented in these two cases,
and in the interest of administrative efficiency, Biospherics' unopposed request is granted.
Accordingly, the cases are hereby consolidated for review and decision. See 29 C.F.R. §8.14.
B. Biospherics' Motion for Protective Order is denied.
Referring to Fed. R. Civ. P. 26(c)(7), which provides qualified protection for
confidential commercial information in the civil discovery context, Biospherics has moved for a
protective order to prevent "any person or entity from disseminating to any third party any
pleadings which they receive" in these cases. According to Biospherics, the pleadings contain
proprietary wage rate information, which if disseminated to competitors could result in a severe
competitive disadvantage to Biospherics. Biospherics adds that, on information and belief, Darlene
Summerfield (an interested party in the action) is disseminating this sensitive information to other
parties and employees of Biospherics, who in turn may be distributing the information to
competitors. For the reasons discussed below, we deny the motion.
Background
Biospherics filed its initial Petition for Review in ARB Case No. 97-001 in
September 1996, and the appeal was dismissed as untimely. Following reconsideration by the Wage
and Hour Administrator, Biospherics filed another appeal, docketed as ARB Case No. 97-086, in
April 1997. The Board established a briefing schedule, but at Biospherics' request the matter was
stayed three times, ultimately until April 1998. During that time, Summerfield, who asserts that she
is an employee of Biospherics, filed with the Board a number of status inquiries and comments
regarding the case. On April 3, 1998, the Board responded to a congressional inquiry made on
Summerfield's behalf, and served on the parties a copy of the response, together with copies of
Summerfield's most recent correspondence to the Board.
1 The order also dismissed as
premature Biospherics' November 10, 1997 Amended Petition for Review, and remanded the matter to
the Wage and Hour Division for reconsideration. In response, the Wage and Hour Division issued the
June 22, 1998 ruling letter, which is now the subject of Biospherics' Second Petition for Review, ARB
Case No. 98-141.
2 The regulation at 29 C.F.R.
§8.12 directs the Board to permit any interested party, for good cause shown, to "intervene
or otherwise participate" in any Board proceeding.