DENIED: May 3, 2017
CBCA 5036
SECTEK, INC.,
Appellant,
v.
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION,
Respondent.
Jeffrey Weinstein of  The Weinstein Law Group, PLLC, Washington, DC, counsel for
Appellant.
Jennifer A. Klein, Office of the General Counsel, National Archives and Records
Administration, College Park, MD, counsel for Respondent.
Before Board Judges SOMERS, HYATT, and SHERIDAN.
HYATT, Board Judge.
This appeal is of a contracting officer’s deemed denial of the certified claim of
SecTek, Inc. for the amount of $168,655.52 in increased costs of employee benefits it
incurred in performing its contract to provide security guard services for two National
Archives and Records Administration (NARA) locations.  The parties have agreed to a joint
statement of undisputed facts and have filed cross motions for summary relief.  For the
reasons stated herein, we deny SecTek’s motion and grant the Government’s motion, thus
denying the appeal.

CBCA 5036 2
Findings of Fact
On March 6, 2015, NARA issued a request for quotation (RFQ) for the provision of
security guard support services for the Archives I building located in Washington, D.C., and
for the Archives II building located in College Park, Maryland.  The RFQ contemplated the
award of a firm fixed-price task order under the successful offeror’s General Services
Administration (GSA) Schedule contract, for a base year with four option years.  The pricing
instructions stated that the offered prices were to represent the fully burdened cost to deliver
the services listed in the task order.  The RFQ also provided that in the event option years
were exercised, task order prices would be adjusted in accordance with Federal Acquisition
Regulation (FAR) clause 52.222-43, Fair Labor Standards Act and Service Contract Act-
Price Adjustment (Multiple Year and Option Contracts). 
As required by the Service Contract Act, 41 U.S.C. §§ 6701-6707 (2012), the RFQ
included documentation setting forth minimum wage and fringe benefit requirements for the
proposed contract.  Enclosure three provided the pertinent Department of Labor wage
determination dated June 19, 2013.  The incumbent contractor had entered into a collective
bargaining agreement with the National Association of Special Police and Security Officers. 
Enclosure four contained the applicable collective bargaining agreement wage determination,
CBA-2010-3553.  Article XXVII of the incumbent contractor’s collective bargaining
agreement addressed employee wages and benefits, which are set forth in an appendix to the
agreement.  The appendix prescribed the hourly wages to be paid to armed security guards,
the rates for employer health and welfare and pension contributions, and the basis for accrual
of vacation and holiday pay.  With respect to accrued vacation benefits, the collective
bargaining agreement established the amount of vacation time employees earned based on
their years of service as follows:
1 - 4 years of service 2 weeks
5 - 14 years of service 3 weeks
15 or more years of service 5 weeks
The RFQ also incorporated by reference FAR clause 52.222-17, Nondisplacement of
Qualified Workers.  48 CFR 52.222-17 (2014).  This clause requires the successor contractor
to offer the service employees of the predecessor contractor, whose employment will be
terminated as a result of the award of the new contract, a right of first refusal of employment
under the newly awarded contract in positions for which the employees are qualified.  To
facilitate the nondisplacement of the successor contractor’s employees, paragraph (e)(1) of
the clause requires:

CBCA 5036 3
 [T]he predecessor Contractor shall, not less than 10 days before completion
of this contract, furnish the Contracting Officer a certified list of the names of
all service employees working under this contract and its subcontracts during
the last month of contract performance.  The list shall also contain anniversary
dates of employment of each service employee under this contract and its
predecessor contracts either with the current or predecessor Contractors or
their subcontractors.  If there are no changes to the workforce before the
predecessor contract is completed, then the predecessor Contractor is not
required to submit a revised list 10 days prior to completion of performance
and the requirements of 52.222-41(n) are met.  When there are changes to the
workforce after submission of the 30-day list, the predecessor Contractor shall
submit a revised certified list not less than 10 days prior to performance
completion.
Paragraph (e)(2) of this clause provides:
Immediately upon receipt of the certified service employee list but not before
contract award, the contracting officer shall provide the certified employee list
to the successor contractor, and, if requested, to employees of the predecessor
contractor or subcontractors of their authorized representatives. 
Enclosure 8 of the RFQ set forth instructions for the submission of quotations.
Paragraph 6 of that section stated:
Exceptions Taken to any Terms and Conditions Stated in the RFQ.  Complete
rationale, justification, and cost impact must be included on a separate sheet,
titled “Exceptions[,]” within the Vendor’s quotation.  If this sheet is not
included, the Government may consider your quotation [as] containing no
exceptions.  The Government advises Vendors that it intends to evaluate
quotations and award a task order without discussions.
In preparing its offer, SecTek inquired whether the Government would provide a list
of the incumbent contractor’s security officers including their employment seniority.   NARA
responded to this question in amendment 3 to the solicitation, which was provided to all
offerors:
In accordance with [FAR] section 2.1204  – Certified Service Employee Lists,
paragraph (b):  Immediately upon receipt of the certified list, but not before
contract award, the contracting officer shall provide the certified service
employee list to the successor contractor, and, if requested, to the employees

CBCA 5036 4
of the predecessor contractor or subcontractors or their authorized
representatives.
SecTek submitted a best and final offer to NARA on August 5, 2014.  SecTek’s quote
stated that it was “inclusive of all direct costs, indirect costs, and profit” and “include[d] all
costs associated with providing services described in the Statement of Work to include relief,
training, equipment, vacation, sick time, and travel.”  Section 3 outlined SecTek’s offered
fringe benefits.  Regarding vacation time, SecTek’s quote stated, “As no seniority roster was
provided, we have projected the average length of service [for each employee] to be
approximately three years.  This equates to 80 hours of vacation for all guards.”  SecTek’s
offer also included an exceptions sheet in volume III – Price, that stated: “SECTEK
ACCEPTS ALL TERMS AND CONDITIONS STATED IN THE RFQ.”  SecTek’s offer
totaled $40,918,522.84. 
NARA awarded firm fixed-price task order NAMA-14-F-0127, in the amount of
$40,918,522.84, to SecTek on August 18, 2014.  On August 28, 2014, ten days after contract
award, NARA provided SecTek with the seniority list of the predecessor contractor’s
employees. 
On April 21, 2015, SecTek submitted to NARA a request for equitable adjustment in
the amount $168,665.52.  The letter stated:
As a seniority list was not provided in the RF[Q], SecTek’s current contract
price does not include the actual vacation earned by the employees on the
contract.  Therefore, SecTek respectfully requests $168,665.52 to reimburse
[it] for the vacation expense incurred in the base year due to the seniority status
of the workforce.  Please note that all calculations are based on the seniority
list (as of 12/17/14) provided with this letter.
By email message dated May 20, 2015, the contracting officer notified SecTek that
its request was denied because the agency had fully complied with the FAR in releasing the
seniority list.  The contracting officer’s decision further stated that since the task order
awarded to SecTek was firm fixed-price there was no basis for providing an equitable
adjustment for the claimed costs.  
Thereafter, through email messages, SecTek requested that NARA reconsider its
denial of SecTek’s request, advising that it had “adjusted” its request to reference FAR
clause 52.222-43 “Fair Labor Standards Act and Service Contract Labor Standards–Price
Adjustment (Multiple Year and Option Contracts).”  In a letter dated July 9, 2015, the

CBCA 5036 5
contracting officer responded to SecTek’s request for reconsideration, upholding the prior
decision denying SecTek’s request for an equitable adjustment. 
SecTek filed a formal certified claim dated August 6, 2015, again asserting that it was
entitled to an upward revision of the contract price in the amount of $168,665.52, because
NARA had not provided the seniority list prior to award, and SecTek was obligated to
comply with the collective bargaining agreement’s defined benefit level for vacation pay. 
When no decision was issued by the contracting officer in response to the certified
claim, SecTek appealed to the Board, alleging it was entitled to an upward equitable
adjustment to the contract price necessitated by NARA’s failure to provide the seniority
information prior to contract award.
Discussion
Each party has filed a motion for summary relief contending that it is entitled to
prevail as a matter of law.  The parties have filed a joint statement of undisputed facts and
assert that this matter is suitable for resolution on summary relief.  The issue to be resolved
is whether the failure to provide SecTek with a seniority list of the incumbent contractor’s
service employees prior to award entitles SecTek to the price adjustment that it seeks.  
Resolving a dispute on a motion for summary relief is appropriate when there is no
genuine dispute as to any material fact, and the moving party is entitled to judgment as matter
of law.  E.g., Celotex Corporation v. Catrett, 477 U.S. 317, 330 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).  When both parties move for summary relief, each
party’s motion will be evaluated on its own merits and all reasonable inferences will be
resolved against the party whose motion is under consideration.  The sole issue presented in
this appeal is a question of law, so resolving the issue on cross-motions for summary relief
is appropriate.  Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin
v. Department of the Interior, CBCA 2024-ISDA, 11-1 BCA ¶ 34,685, at 170,843 (citing
Olympus Corp. v. United States, 98 F.3d 1314, 1316 (Fed. Cir. 1996)).
This contract is subject to the Service Contract Act, which, through the inclusion of
mandatory contract clauses, provides minimum wage and benefit protections for service
workers employed to perform government contracts.  See Call Henry, Inc. v. United States,
No. 2016-1732, 2017 WL 1521788, at*1 (Fed. Cir. Apr. 28, 2017);  Lear Siegler Services,
Inc. v. Rumsfeld, 457 F.3d 1262, 1266 (Fed. Cir. 2006); Corrections Corp. of America v.
Department of Homeland Security, CBCA 2647, 15-1 BCA ¶ 35,971, at 175,588; CTI Global
Solutions, Inc. v. Department of Justice, CBCA 2498, 12-1 BCA ¶ 34,889, at 175,742 (2011). 
Contractors are obligated to pay their service workers the prevailing wage rates as set forth

CBCA 5036 6
either in a wage determination issued by the Department of Labor or in an applicable
collective bargaining agreement.  In addition, successor contractors are prohibited from
paying their employees less than the wages and benefits paid by the predecessor contractor
pursuant to a collective bargaining agreement.  41 U.S.C. § 6707(c)(1); Lear Siegler, 457
F.3d at 1266.  In the event the prevailing wage rate or collective bargaining wage rates are
subject to an increase during a period of contract performance, FAR clause 52.222-43, “Fair
Labor Standards Act and Service Contract Labor Standards–Price Adjustment (Multiple Year
and Option Contracts), comes into play, entitling the contractor to a price increase in the
option years if a new wage determination causes the contractor to pay increased wages or
benefits.
 
Under Executive Order 13495, as implemented in FAR 22.1200, a successor
contractor, subject to certain exceptions, and allowing for differing staffing patterns, is
required to offer those service employees that are employed under the predecessor contract,
and whose employment will be terminated as a result of the award of the successor contract,
a right of first refusal of employment under the contract in positions for which they are
qualified.  48 CFR 22.1202(a).  To this end, FAR 22.1204 requires that not less than thirty
days before completion of the contract, the predecessor contractor shall furnish to the
contracting officer a certified list with the names of all service employees working under the
contract and any subcontracts at that time.  If there are changes to the workforce after
submission of that list, a revised list is to be provided no less that ten days prior to contract
completion.  Immediately upon receipt of the list, but not prior to contract award, the
contracting officer shall provide the list to the successor contractor.
The price adjustment that SecTek claims represents the higher costs it incurred as a
result of having underestimated the vacation time to which the predecessor service employees
who continued to work on the successor contract would be entitled.  SecTek maintains that
the Government’s failure to provide the requested seniority list before the submission of best
and final offers and contract award precluded it from ascertaining the actual level of vacation
pay that it would be required to pay the incumbent contractor’s  employees.  According to
SecTek, the Government had an affirmative duty to provide a complete copy of the existing
collective bargaining agreement to it prior to contract award, and absent the seniority list, the
collective bargaining agreement was incomplete. 
In support of its argument, SecTek relies heavily on a decision issued by the Armed
Services Board of Contract Appeals, addressing the duty of an agency to provide complete
information covering the wages and benefits required under the incumbent contractor’s
collective bargaining agreement.  CAE USA, Inc., ASBCA 58006, 14-1 BCA ¶ 35,519.   In
CAE, the Air Force awarded a successor contract for the provision of support services for its
Aircrew Training System (ATS).  The predecessor ATS contract was subject to two

CBCA 5036 7
collective bargaining agreements, copies of which were provided with the solicitation.  The
agreements referenced the incumbent contractor’s corporate benefit program offered to
employees, but copies of the benefit program, which detailed the specific benefits provided
to employees, were not included with the copies of the two agreements.  Lacking this
information, CAE submitted a bid based on its own cost estimate.  After award of the
contract, CAE discovered that it had underestimated the actual cost of providing the fringe
benefits and requested an equitable adjustment for the increased costs, arguing that the
Service Contract Act and the FAR imposed upon the contracting officer a duty to supply “all
information regarding the amount of wages and fringe benefits that the predecessor
contractor had agreed to” in the new collective bargaining agreements.  Id. at 174,088
(emphasis added).
   
The board agreed that FAR 22.1008-2 imposed upon the contracting officer an
affirmative duty to provide to successor contractors a complete copy of any collective
bargaining agreement applicable to the successor contract.  The board also found that the
contracting officer’s failure to include specific cost information concerning the predecessor
contractor’s wages and fringe benefits program rendered the collective bargaining
agreements provided to the offerors incomplete because without this information offerors
would be unable to ascertain the amount of wages and fringe benefits required by the
solicitation under the FAR and the Service Contract Act and thus would be unduly hindered
in the need to meet the statutory requirement to provide not less than the level of benefits
offered by the incumbent contractor.  Recognizing that “the FAR’s requirement that the
[contracting officer] provide a complete [collective bargaining agreement] and provide it to
bidders is intended to benefit contractors,” the board nonetheless denied the appeal because
CAE had been aware of the omission and failed to ask the Government for the missing
information, choosing instead to formulate its offer using its own assumptions. CAE, 14-1
BCA at 174,089.
SecTek urges that, unlike the appellant in CAE, it, in fact, inquired about the
“missing” seniority list, and since the Government failed to provide the list, it should recover
the added expense.  The rationale of CAE, however, does not extend to these facts.  In CAE, 
the contracting officer failed to provide offerors the actual wage and fringe benefits
information required to be paid to service employees under the applicable collective
bargaining agreements.  In contrast, the collective bargaining agreement provided by NARA
in the RFQ expressly set forth the employee wages and fringe benefits provided under the
predecessor contract.  Thus, under the facts relevant to the board’s analysis in CAE, NARA
fully met its obligation to furnish a complete collective bargaining agreement to prospective
offerors.

CBCA 5036 8
Although information about the seniority of the predecessor contractor’s employees
may have been helpful in estimating the level of benefits extended to those employees, this
does not mean that the information must be, or even could have been, provided in advance
of contract award.  SecTek’s argument is incompatible with the applicable provisions of the
Service Contract Act and the FAR.  The Government, under FAR 22.1204, is not entitled to
request the list until thirty days prior to the expiration of the contract.  In addition, the
Government is not permitted to release the seniority list to the successor contractor until after
contract award.  The Government furnished the seniority list to SecTek on August 28, 2014
– ten days after contract award and in full compliance with the FAR requirement.  
           NARA points out that the RFQ contemplated the award of a fixed-price task order,
with limited circumstances under which the contractor would be eligible to recover increased
costs under the Price Adjustment clause.  After receiving the agency’s response to its
question regarding the seniority list in amendment 3, SecTek submitted a proposal, which it
noted was inclusive of all direct costs, including vacation time.  Notwithstanding its notation
that its costs estimates were prepared without the benefit of the requested seniority list,
SecTek did not specify in its offer, as required by the solicitation, that it took any exceptions
to the stated terms and conditions.  Whatever SecTek intended by this notation, it nonetheless
bore the risk that its cost projections might prove to be insufficient.  Indeed, the general rule
in fixed-price contracting is that, in the absence of a contract provision reallocating the risk,
the contractor assumes the risk of increased costs not attributable to the Government.  See
IAP World Services, Inc. v. Department of the Treasury, CBCA 2633, 12-2 BCA ¶ 35,119,
at 172,445 (quoting Southwestern Security Services, Inc. v. Department of Homeland
Security, CBCA 1264, 09-2 BCA ¶ 34,139, at 168,777); B & M Cillessen Construction Co.
v. Department of Health and Human Services, CBCA 1110, 09-1 BCA ¶ 34,069, at 168,460;
Gulf Shores, LLC v. Department of Homeland Security, CBCA 802, 09-1 BCA ¶ 34,024, at
168,305 (2008).
Decision
For the reasons stated above, appellant’s motion for summary relief is denied.  The
Government’s motion for summary relief is granted.  The appeal is DENIED.
__________________________________
CATHERINE B. HYATT
Board Judge

CBCA 5036 9
We concur:
_________________________________ __________________________________
JERI KAYLENE SOMERS PATRICIA J. SHERIDAN
Board Judge Board Judge