On October 17, 2002, the Administrative Review Board issued a Notice of Appeal and Order Establishing Briefing Schedule in this case arising under the McNamara-O'Hara Service Contract Act ("SCA"), as amended, 41 U.S.C.A. § 351 et seq. (West 1987) and 29 C.F.R. Parts 6 and 8. On November 14, 2002, the Administrator of the Wage and Hour Division moved the Board to dismiss the Petition for Review filed by Petitioners FlightSafety Services Corporation, and suspend the briefing schedule until the Board acts upon the motion. On December 3, 2002, the Board issued an Order requiring FlightSafety to show cause why "we should not dismiss its Petition for Review and remand the case to the Administrator because it has not petitioned the Board to review a final ruling of the Administrator in accordance with 29 C.F.R. § 8.1(b)" and granting the motion to suspend the briefing schedule. On December 11, 2002, the Board received FlightSafety's response to the Show Cause Order. As discussed below, we grant the Administrator's Motion to Dismiss and remand the case to the Administrator for a final decision in accordance with 29 C.F.R. § 4.56(a)(2).
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Background
On August 29, 2002, the Department of Labor's Wage and Hour Division (WHD) received a request for review and reconsideration of a wage determination as provided in 29 C.F.R. § 4.56. In this request, FlightSafety sought review of the wage rates issued for the Computer Based Training (CBT) Specialist/Instructor, the Flight Simulator/Instructor (Pilot), and the Instructor classifications as listed in the above-referenced (see caption) wage determinations. FlightSafety averred:
In the contested Wage Determinations, these SCA wage rates have been historically "slotted" against the Computer Systems Analyst I (03101) and Computer Systems II (03102). With the most recent SCA revisions to the Wage Determinations, the rates for some or all of the three Instructor positions ceased to be slotted without assigning another rate to these positions. This was either clerical error or arbitrary and capricious action by those who administer the SCA.
FlightSafety Services Corporation's Request for Review and Reconsideration of Wage Determinations (R. R. R.) at 2.
Addressing the timeliness of the R. R. R., FlightSafety wrote, "[T]his Request for Review and Reconsideration of the referenced SCA Wage Determination is timely submitted as the Request is submitted more than ten (10) days prior to the commencement of the subject contracts (October 1, 2001) pursuant to 29 C.F.R. § 4.56.1 Emphasis supplied.
1 The cited regulation provides in pertinent part, "In 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, or, later than 10 days before commencement of a contract option or extension." 29 C.F.R. § 4.56(a).
2 The Administrator states in her Motion to Dismiss that "FlightSafety never contacted the WHD to amend its reference to October 1, 2001 as the beginning of the relevant contract period or to seek clarification of the WHD's denial of its request for timeliness reasons." Motion to Dismiss at 3. However, there is also no indication in the filings before us that WHD made any effort to contact FlightSafety prior to issuing the September 20 letter in an attempt to correct the obvious error in the reference to the October 1, 2001 commencement date. If WHD had contacted FlightSafety to obtain clarification of the relevant contract period before issuing its letter or if FlightSafety had contacted the WHD to correct its error before filing this appeal, this particular appeal and resultant remand could have been avoided.