DISMISSED IN PART FOR LACK OF JURISDICTION; DENIED IN PART: August 22, 1994 GSBCA 12519 POSH CLEANING SERVICES, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Susie Lewis of Posh Cleaning Services, San Antonio, TX, appearing for Appellant. Lee W. Crook, Office of Regional Counsel, General Services Administration, Forth Worth, TX, counsel for Respondent. GOODMAN, Board Judge. Posh Cleaning Services (Posh or appellant) entered into a contract with the General Services Administration (GSA or respondent) to provide janitorial and related services at the Federal Building/U.S. Post Office, Whitehead and Delaware, Jay, Oklahoma. Appellant has appealed a contracting officer's decision denying its claim for $1,678.08, which represents the reduction of the contract price as the result of a decrease in the minimum wage rate applicable to the contract during the first option year period. Appellant alleges that this decrease resulted because the Department of Labor (DOL) wage determination included in the contract for the base year of performance was either incorrect or that GSA mistakenly incorporated a nonexistent wage determination. Appellant elected to proceed pursuant to Board Rule 13,[foot #] 1 the small claims procedure, and both parties requested a decision on the written record pursuant to Board Rule 21. We dismiss the appeal for lack of jurisdiction to ----------- FOOTNOTE BEGINS --------- [foot #] 1 58 Fed. Reg. 69,246, 69,258 (1993) (to be codified at 48 CFR 6101.13). ----------- FOOTNOTE ENDS ----------- the extent that it requires the Board to make a determination as to the correctness of the DOL wage determination, and deny the appeal as to the claim of mistake. Findings of Fact On March 1, 1989, the GSA issued solicitation number GS-07P- 89-HTC-0050/7ADB (the solicitation) for the subject procurement. By a notice of intention to make a service contract, dated November 23, 1988, the GSA requested a wage determination from the DOL to be included in the contract to be awarded pursuant to the solicitation. The DOL responded on January 13, 1989, informing the GSA that wage determination 76-1401 (Rev. 18), dated November 29, 1988, was applicable. This wage determination required payment of the labor classification of "Janitor, Porter, and Cleaner" (the labor classification applicable to the contract work) at a minimum hourly wage of at least $6.54. Appeal File, Exhibit 1. By amendment number 03, dated May 8, 1989, the procurement method was converted from sealed bidding to negotiation. Appeal File, Exhibit 4. Appellant, one of three offerors, was awarded the contract, dated July 21, 1989, for the base period August 1, 1989, through July 1, 1990. The contract included four option years. Id., Exhibit 7. According to a price adjustment clause contained in the contract,[foot #] 2 if the minimum wage rate applicable to the labor classification increased during any one of the option years pursuant to a DOL wage determination, appellant would be entitled to a corresponding increase in the contract price. This clause also provided that a wage determination which decreased the minimum wage rate of a labor classification contained in the contract entitled the GSA to a corresponding decrease in the contract price. The contract also provided that the DOL had the exclusive jurisdiction to resolve disputes arising out of the labor standards provisions of the contract, and such disputes "shall not be subject to the general disputes clause of this contract." Id., at 143. By a notice of intention to make a service contract, dated October 25, 1989, the GSA requested from the DOL a new wage determination to be applicable to the first option period of appellant's contract. The DOL responded on November 24, 1989, informing the GSA that wage determination number 76-1401 (Rev. 23), dated August 12, 1989, which included a minimum hourly wage ----------- FOOTNOTE BEGINS --------- [foot #] 2 The contract contained the clause required by the General Services Acquisition Regulation (GSAR) 552.222-43 FAIR LABOR STANDARDS ACT AND SERVICE CONTRACT ACT - PRICE ADJUSTMENT (OPTION CONTRACT) (JUNE 1986)(hereinafter referred to as the "Price Adjustment clause"). Appeal File, Exhibit 7 at 128. ----------- FOOTNOTE ENDS ----------- rate of $5.11 for the relevant labor classification, was applicable to the option period. Appeal File, Exhibit 10. By modification P003, dated May 17, 1990, the GSA exercised the first option period and incorporated wage determination number 76-1401 (Rev. 23) into the contract for that period. Id., Exhibit 13. As this minimum hourly wage rate was less than that contained in the previous wage determination for the base contract period, the GSA reduced appellant's contract price pursuant to the contract, decreasing the monthly price of the contract by $139.84. Id. By letter dated June 15, 1990, appellant sought DOL review of the correctness of the wage determination included by the GSA in the base contract period. Notice of Appeal, Exhibit 9. Appellant presented documentation to the DOL concerning wage determinations for several previous years, including the wage determination in the previous contract for cleaning the building, which was held by another contractor. These wage determinations contained a wage rate applicable to the labor classification at issue in the amount of $5.11 per hour. Id., Exhibits 5, 6. Additionally, appellant presented documentation concerning a wage determination in force on another contract in the same county during the base contract period which contained a minimum hourly rate of $5.11 for the relevant labor classification. Id., Exhibit 14. Appellant also presented a handwritten note, allegedly from a DOL employee, which read "Here are the janitor, porter, cleaner rates for Jay, Oklahoma for 1988, 1987, and 1984. The wage rate has been retained for several years." Id., Exhibit 6. Appellant questioned why the wage determination included in its contract for the base period contained the hourly wage rate of $6.54 for the relevant labor classification when previous and subsequent determinations included the hourly wage rate of $5.11 for the same labor classification. By letter dated June 20, 1990, appellant was advised by the DOL that wage determination number 76-1401 (Rev. 18) contained in the contract for the base period was correct. Notice of Appeal, Exhibit 10. By letter dated September 4, 1990, appellant sought review of this determination by the DOL's Wage and Hour Division. Id., Exhibit 11. By letter dated April 19, 1991, the DOL dismissed appellant's request for review as untimely, as this was a negotiated procurement and, according to the DOL, a request for review of the wage determination had to be filed within ten days of contract award.[foot #] 3 Id., Exhibit 1. Appellant then filed an appeal with the Deputy Secretary of Labor, Office of Administrative Appeals. Id., Exhibit 2. This ----------- FOOTNOTE BEGINS --------- [foot #] 3 Appellant had not questioned the correctness of the original wage determination until a new wage determination was issued for the first option period. ----------- FOOTNOTE ENDS ----------- appeal was dismissed as untimely on September 18, 1991, by the DOL Wage and Hours Appeals Board.[foot #] 4 Appellant then submitted to respondent an invoice dated July 3, 1993, requesting that respondent pay appellant $1,678.08, which consisted of the monthly difference of $139.84 caused by a reduction in the minimum hourly wage for the period August 1990 through July 1991.[foot #] 5 Notice of Appeal, Exhibit 17. By notice of appeal dated July 29, 1993, appellant submitted the instant appeal to this Board. Appeal File, Exhibit 16. On August 10, 1993, the Board issued an order on further proceedings, suspended proceedings, and requested respondent to provide a contracting officer's decision concerning the claim or an explanation as to why a decision should not be issued. By letter dated September 3, 1993, the contracting officer notified appellant that respondent believed that the DOL had proper jurisdiction in the matter in dispute, based on the fact that respondent had utilized the wage determinations provided by DOL for the relevant contract periods, and thus could not render a decision in this matter. Appeal File, Exhibit 19. On November 4, 1993, the Board held a conference with the parties and directed respondent to review the decision in Burnside-Ott Aviation Training Center, Inc. v. United States, 985 F.2d 1574 (Fed. Cir. 1993) with regard to the jurisdictional objection raised in the contracting officer's previous letter. Appeal File, Exhibit 10. Thereafter, by letter dated December 2, 1993, the contracting officer issued a decision denying appellant's claim. Id., Exhibit 21. Appellant filed a second notice of appeal, received by the Board on February 22, 1994, in response to the contracting officer's decision. ----------- FOOTNOTE BEGINS --------- [foot #] 4 The record submitted by the parties did not contain an indication as to the disposition of the matter at the DOL. The Board contacted the DOL and was informed that the matter had been transferred from the Office of Administrative Appeals to the Wage and Hours Appeals Board. The Wage and Hours Appeals Board advised this Board as to the dismissal. [foot #] 5 This difference appears to be the loss to the appellant, as appellant did not reduce its employees' wages from that paid during the base contract period, even though the contract price was reduced. ----------- FOOTNOTE ENDS ----------- Discussion Appellant proceeds in this appeal pro se, alleging two legal theories in its various submissions. Appellant first contends that wage determination number 76-1401 (Rev. 18) issued by the DOL, which was incorporated into the contract, was incorrect, and that it was therefore given the "wrong [wage] determination. . . . I have a signed document by a [DOL employee] that states that the wage has been the same since 1975." Appellant also notes that the contract for three years prior to appellant's contract contained the lower hourly wage rate of $5.11 for the relevant labor classification. Second Notice of Appeal at 1. Thus, appellant believes that the correct hourly wage rate for the base contract year was $5.11, and if this wage rate had been applied, the contract price would not have been adjusted downward by the later wage determination. This issue has previously been presented by appellant to the DOL. Appellant also presents an alternative legal theory in its complaint and record submission. In its complaint, appellant alleges that "the contracting agency failed to follow regulations . . . and file a 'Notice of Intent[ion to Make a Service Contract]'" and that the "Department of Labor did not issue wage determination 76-1401 (Rev. 18) dated 11-29-88." Complaint 1, 2. In its record submission, appellant alleges that the DOL does "not have a record of the rate for those counties [the applicable locality] ever being $6.54, . . . which means the mistake was made when the GSA transferred the information from the notice of intent onto the Procurement Register." Appellant's Brief at 1. Thus, appellant contends that the GSA failed to request a determination as to the applicable wage rate from the DOL, and thereafter mistakenly included a nonexistent wage determination in the contract for the base contract period. As appellant also did not realize the alleged mistake until the wage determination was issued for the first option period, we view this as an allegation of mutual mistake. Allegation of Incorrect Wage Determination With regard to appellant's allegation that wage determination number 76-1401 (Rev. 18) was not the correct wage determination, the contract provides that the DOL has exclusive jurisdiction for resolving disputes arising out of the labor standards provisions of a contract and that such disputes shall not be subject to the general disputes clause of the contract. This Board has consistently held that it has no authority to determine the correctness of, or make changes to, wage determinations issued by the DOL which have subsequently been incorporated into contracts by procuring agencies. See JL Associates, Inc. v. General Services Administration, GSBCA 11922, 93-3 BCA 25,939, at 129,011 ("We simply do not have the authority to change the amount of any wage determination applied to appellant's contract."); Tele-Sentry Security, Inc., GSBCA 10945(7703)-REIN, 91-2 BCA 23,880, at 119,619, aff'd, 950 F.2d 730 (Fed. Cir. 1991) (table) (noting that this Board has no jurisdiction over disagreements concerning classification of wage rates contained in the wage determination); A&C Building, GSBCA 5589, 82-1 BCA 15,634, at 77,232 ("[T]his tribunal has no jurisdiction to review the correctness of a wage determination issued by the [DOL]."); Kass Management Services, Inc., GSBCA 8819, 88-3 BCA 20,891, at 105,618 (the Board does not have the power to "challenge the accuracy of the . . . wage determinations issued under the Service Contract Act and applied by the DOL to appellant's contracts with GSA . . . ."). Appellant has sought from and been denied relief by the DOL as to the issue of the correctness of the wage determination included in the base year of its contract. Accordingly, to the extent that appellant seeks relief from this Board on the ground that the wage determination included in the original contract was incorrect, we lack jurisdiction and dismiss the appeal. Allegation of Mutual Mistake In its complaint and record submission, appellant alleges that GSA did not follow regulations, failed to file a notice of intention to make a service contract, and incorporated a wage determination of which DOL "has no record." Appellant did not realize this until the wage determination was issued for the first option year. Therefore, appellant contends that the reduction in its contract price, pursuant to the Price Adjustment clause in its contract, was the result of this mutual mistake and seeks a determination as to the effect this mistake had with regard to its contract rights. In Burnside-Ott Aviation Training Center, Inc. v. United States, 985 F.2d 1574 (Fed. Cir. 1993), the Court held that a court or a board of contract appeals does not lose jurisdiction to resolve disputes involving mutual contract rights and obligations if labor standard issues within the exclusive jurisdiction of the DOL form the partial factual predicate of the dispute between the parties. By alleging mutual mistake and the nonexistence of wage determination number 76-1401 (Rev. 18), appellant asks us to construe its contract rights in view of the alleged mistake and the GSA's application of the Price Adjustment clause in reducing its contract price. Accordingly, we have jurisdiction to resolve this dispute to the extent that it involves the allegation of mutual mistake. See also Emerald Maintenance, Inc., ASBCA 36628, et al., 90-2 BCA 22,179. Appellant's allegations are clearly contradicted by the record in this appeal. As discussed above, the GSA filed the requisite notice of intent to make a service contract, and the DOL responded that wage determination number 76-1401 (Rev. 18) was applicable to the procurement. Documentation supporting that wage determination is included in the record. Appellant bases its argument that "DOL has no record" of this wage determination on the allegation that it was informed by a DOL employee that the wage rate had not changed during the relevant period. The documentation which appellant characterizes as a statement by a DOL employee that the rate has not changed "since 1975" makes no reference to the wage determination included in appellant's contract, and states only that the "wage rate has been retained for several years." The DOL employee who forwarded this note to appellant is not the same individual who executed the DOL response to the GSA's notice of intention to make a service contract. Wage determination number 76-1401 (Rev. 18) contained a minimum hourly rate of $6.54, while previous and subsequent determinations contained a rate of $5.11. While no explanation has been offered as to this fluctuation in wage rates, we cannot conclude, based upon the record in this appeal, that wage determination number 76-1401 (Rev. 18) did not exist or that the GSA made a mistake by incorporating it into the solicitation and the contract. We deny appellant's claim of mutual mistake. Decision Appellant's claim seeking a determination as to the correctness of the wage determination is DISMISSED FOR LACK OF JURISDICTION. Appellant's claim based upon mutual mistake is DENIED. ______________________ ALLAN H. GOODMAN Board Judge