DISMISSED FOR LACK OF JURISDICTION: February 27, 2018
CBCA 5837
ALCAZAR TRADES, INC.,
Appellant,
v.
NUCLEAR REGULATORY COMMISSION,
Respondent.
Jonathan M. Bailey and Kristin E. Zachman of Bailey & Bailey, P.C., San Antonio,
TX, counsel for Appellant.
Ruth Kowarski Cooke, Shelbie R. Lewman, and Robin A. Baum, Office of the
General Counsel, Nuclear Regulatory Commission, Washington, DC, counsel for
Respondent.
SOMERS, Board Judge (Chair).
The Nuclear Regulatory Commission (NRC) awarded a task order for janitorial
services to Alcazar Trades, Inc. (ATI) under a General Services Administration (GSA)
schedule contract.  After award, ATI negotiated a new collective bargaining agreement
(CBA).  ATI submitted this agreement to the NRC contracting officer (CO) and requested
an equitable adjustment for all option years.  The contracting officer denied the claim and
ATI appealed.   In lieu of filing an answer, NRC filed a motion to dismiss for lack of
jurisdiction.  For the reasons explained below, we grant the motion to dismiss. 

CBCA 5837 2
Background
 On October 23, 2105, the NRC requested quotations from holders of GSA schedule
contracts for the provision of custodial services for multiple locations in Montgomery
County, Maryland.  The request for quotations (RFQ) contemplated the award of a firm
fixed-price/time and material hybrid task order, with a cost reimbursable line for
reimbursable work, not to exceed $75,000 per year, for a base year with four option years. 
ATI responded to the RFQ.  On April 12, 2016, the NRC awarded a task order to ATI for the
services in question. 
The Service Contract Act of 1965, 41 U.S.C. §§ 6701-6707 (2012), mandates that
under certain contracts with federal government agencies, contractors must pay, at a
minimum, the wages and fringe benefits identified in a wage determination issued by the
Department of Labor (DOL).   The Act applied to ATI’s schedule contract and the task order
with NRC incorporated DOL’s wage determination 05-2013, revision 16, dated August 8,
2015.  
The contract incorporated by reference  Federal Acquisition Regulation (FAR) clause
52.222-41, Service Contract Labor Standards (2014) (SCLS), which includes the following
relevant provision: 
(t) Disputes Concerning Labor Standards.  The U.S. Department of Labor has
set forth in 29 CFR parts 4, 6, and 8 procedures for resolving disputes
concerning labor standards requirements.  Such disputes shall be resolved in
accordance with those procedures and not the Disputes clause of this contract. 
Disputes within the meaning of this clause include disputes between the
Contractor (or any of its subcontractors) and the contracting agency, the U.S.
Department of Labor, or the employees or their representatives. 
48 CFR 52.222-41 (2015).  The schedule contract also included FAR clause 52.222-43, Fair
Labor Standards Act and Service Contract Labor Standards–Price Adjustment (Multiple Year
and Option Contracts) (May 2014). 
In December 2016, Local 99 of the International Union of Operating Engineers,
representing ATI’s employees, sought to negotiate a new CBA.  After successful
negotiations, ATI entered into a new agreement with the union, to be effective April 1, 2017. 

CBCA 5837 3
On February 1, 2017, NRC informed ATI that it planned to exercise the first option
year of the contract, which it did through contract modification issued on February 6, 2017. 
On February 17, 2017, ATI attempted to contact NRC’s contracting officer about the new
collective bargaining agreement, but apparently used an incorrect email address.  Using the
correct email address on February 28, 2017, ATI informed NRC’s contracting officer about
the new collective bargaining agreement and asked for an equitable adjustment to cover the
increases in wages and benefits.  The record does not include evidence that DOL had issued
a new wage determination incorporating the collective bargaining agreement at that time.  
On March 20, 2017, ATI asked the NRC contracting officer about the status of its
request for equitable adjustment.  The contracting officer responded on March 27, stating that
“a majority of the contract per month and year is fixed price . . . . The labor rate, fringe, wage
and benefits etc., are all built into that fixed price.  The NRC and [ATI] agreed to that fixed
price when the contract was signed and therefore the NRC is not obligated to increase the
ceiling of the contract no matter what increase there is to the collective bargaining
agreement/wage and benefits.”  
Later, on April 4, 2017, the NRC contracting officer asked the GSA contracting
officer about ATI’s new collective bargaining agreement.  The GSA contracting officer
explained that, at some unidentified date, ATI had submitted a collective bargaining
agreement with an economic price adjustment modification to GSA for consideration, that
GSA had “rejected” the collective bargaining agreement, and that ATI was supposed to
resubmit at a later date but had not done so.   
On June 27, 2017, ATI submitted a claim to the NRC seeking $32,316.65 as an
equitable adjustment for anticipated increased costs resulting from the collective bargaining
agreement.   Two days later, the NRC contracting officer forwarded a copy of the claim to
the GSA contracting officer.  
Email correspondence between the GSA and the NRC reflected an ongoing dialogue
about the status of the claim but no resolution.  From July 18, 2017, until August 7, 2017,
GSA informed NRC that GSA was handling the claim, and that GSA understood that ATI
intended to withdraw its claim with NRC.  Ultimately, ATI never did.   
Consequently, on August 17, 2017, the NRC contracting officer issued a final decision
denying ATI’s claim, stating, in pertinent part, that resolution of the claim required
interpretation of ATI’s GSA schedule contract and that the record to date reflected the fact
that GSA had not approved ATI’s proposed price increases.  ATI timely appealed, requesting
a modification of the task order to incorporate the new wage determination from the latest
collective bargaining agreement and an equitable adjustment in the amount of $32,316.65.

CBCA 5837 4
Discussion
As noted above, the present task order, as well as the underlying FSS contract, is
subject to the Service Contract Act, which requires contractors or subcontractors entering
into service contracts in excess of $2500 to pay no less than the prevailing wage rates set
forth in either a DOL wage determination or the rates contained in an applicable collective
bargaining agreement.  41 U.S.C. § 6702(a) ; see Call Henry, Inc. v. United States, 855 F.3d
1348, 1350 (Fed. Cir. 2017).  If the prevailing wage rates or the collective bargaining wage
rates are subject to an increase during a period of contract performance, the contractor is
entitled to “a price increase in the option years if a new wage determination causes the
contractor to pay increased wages or benefits.”  SecTek, Inc. v. National Archives and
Records Administration, CBCA 5036, 17-1 BCA ¶ 36,735, at 178,903 (emphasis added);
FAR 52.222-43.  
Here, the parties have not presented any evidence that a new wage determination
based upon the new collective bargaining agreement had been issued when ATI filed its
claim.  ATI seeks to apply the new collective bargaining agreement to “its contract with GSA
and first option year under ATI’s task order with NRC.”  Deciding “whether a particular
CBA ‘should be the basis of a revised wage determination’ applicable to the option year”
has, in the past, been left to DOL.  SecTek, Inc. v. National Archives Records Administration,
CBCA 5084-R, 16-1 BCA ¶ 36,466, at 177,693 (quoting JL Associates, Inc. v. General
Services Administration, GSBCA 11922, 93-3 BCA ¶ 25,939, at 129,011).  The DOL
regulations in 29 CFR part 7 “set forth the [exclusive] procedure for appellant to follow if
it has any questions concerning the correct wage determination to be used in its contract” and 
that “the regulations leave it to DOL to decide whether the . . . CBA should have formed the
basis of a wage determination for the contracting officer to apply when considering a price
adjustment”.  JL Associates, Inc., 93-3 BCA at 129,012 
ATI asserts that it is the CO’s responsibility to obtain the wage determination upon
exercising any option to extend the contract, and this Board has jurisdiction because the CO
failed to fulfill his duty.  ATI argues that, under Tecom, Inc.,1 because the CO failed to fulfill
her duties under FAR 22.10072, the new collective bargaining agreement could be
1 ASBCA 51591, 01-1 BCA 
¶ 31,156 (2000)
2 In 2000, at the time of the Tecom decision, FAR 22.1007 stated that “the
contracting officer shall submit Standard Forms 98 and 98a, ‘Notice of Intention to Make a
Service Contract and Response to Notice’ . . . to the Administrator, Wage and Hour

CBCA 5837 5
retroactively incorporated into the contract.  The facts here are distinguishable from those in
Tecom.  In Tecom, the contracting officer did timely submit a SF 98 form to obtain a wage
determination, but failed to timely notify the parties, which is, in part, why the Armed
Services Board of Contract Appeals permitted incorporation of the wage determination based
upon the new CBA.  Tecom, Inc., 01-1 BCA at 153,901.  Here, the CO never obtained a
wage determination.
In sum, because we hold that it is within DOL’s jurisdiction to decide whether ATI’s
new CBA should form the basis of a wage determination, we need not address ATI’s
alternative argument.
Decision
For the foregoing reasons, respondent’s motion to dismiss is granted.  The appeal is
DISMISSED FOR LACK OF JURISDICTION.
_________________________
JERI KAYLENE SOMERS
Board Judge
We concur:
____________________________ _____________________________
CATHERINE B. HYATT ALLAN H. GOODMAN
Board Judge Board Judge
Division” for service contracts over $2500 and contract modifications bringing the contract
over $2500.  FAR 22.1007 (1999).  The 2015 version simply states that the contracting
officer “shall obtain wage determinations” for the previously mentioned contracts.  FAR
22.1007 (2015).