1 This case has been recaptioned to identify
the employer as the primary respondent.
2 The site where the contract was
to be performed, which is located in Bayview, Idaho, has also been called the Acoustic Trials
Detachment.
3 These facts are based upon the
Statement of Facts contained in the Statement of the Acting Administrator in Opposition to Petition for
Review which was accepted and incorporated into the Statement of Complainant in Support of Petition
for Review.
4 "The term 'Defense research
facility' means a Department of Defense facility which performs or contracts for the performance of (A)
basic research; or (B) applied research known as exploratory development." 10 U.S.C.
§2364(c)(1) (1994).
5 "The terms 'Federal
laboratory' and 'laboratory' have the meanings given the term 'laboratory' in . . . 15 U.S.C.
3710a(d)(2)." 10 U.S.C. §2491(5) (1994) (renumbered as 10 U.S.C. §2500(5) by Pub.
L. 105-85, Div. A. Title III, §371(c)(4), 111 Stat. 1705 (1997)).
6 "The term 'public building'
means any building . . . which is generally suitable for office or storage space or both for the use of one
or more Federal agencies . . . but shall not include any such building and construction projects: . . . (G)
on military installations (including any fort, camp, post, naval training station, airfield, proving ground,
military supply depot, military school, or any similar facility of the Department of Defense)." Pub.
L. 86-249, §13(1), 73 Stat. 479, 482 (1959), codified at 40 U.S.C. §612(a) (1994).
7 "Upon completion of the
investigation, the Administrator shall issue a written determination of whether a violation has occurred
which contain [sic] a statement of findings and conclusions." 29 C.F.R. §9.102(c) (2000).
8 "'Public building' . . . shall
include the following: . . . (5) warehouses; (6) records centers."
9 "[M]ilitary installations
(including any fort, camp, post, naval training station, airfield, proving ground, military supply depot,
military school, or any similar facility of the Department of Defense, but not including the
Pentagon)." 29 C.F.R. §9.4(b)(2)(vii) (2000).
10 On May 22, 1997, the
Division published its final regulations to implement the Executive Order. 62 Fed. Reg. 28,176. These
regulations became effective July 21, 1997. Id. The regulations applied to all contracts awarded
after the effective date and to all contracts previously awarded which contained the contract clauses set
forth in §4 of the Executive Order. 62 Fed. Reg. 28,184. The contract at issue in this case was
awarded prior to the effective date of the regulations and did not contain the clauses from §4 of the
Executive Order.
11 As the Division explained
in the preamble to its final regulations: "Originally, the Pentagon was considered a 'public building'
within the scope of the Public Buildings Act (not an exempt 'military installation'). Subsequently, section
2804 of the National Defense Authorization for FY 1991 (10 U.S.C. §2674) removed the Pentagon
from GSA's authority under the Public Buildings Act; however, that legislation did not change the Public
Buildings Act's definition of a public building." 62 Fed. Reg. 28,176; 28,177 (1997). Although
the Pentagon is under military authority it remains a "public building" within the meaning
of the Public Buildings Act and therefore "a 'public building' within the meaning of the Executive
Order." Id.