DISMISSED FOR LACK OF JURISDICTION: March 31, 2017
CBCA 5458
CONSULTIS OF SAN ANTONIO, INC.,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
David R. Warner of Centre Law & Consulting LLC, Tysons Corner, VA, counsel for
Appellant.
Harold W. Askins III, Office of Regional Counsel, Department of Veterans Affairs,
Charleston, SC, counsel for Respondent.
Before Board Judges VERGILIO, KULLBERG, and O’ROURKE.
O’ROURKE, Board Judge.
On September 1, 2016, the Board docketed an appeal filed by appellant, Consultis of
San Antonio, Inc. (Consultis), from a contracting officer’s decision dated June 7, 2016.  After
reviewing appellant’s motion to amend the complaint, the Board became concerned about
its jurisdiction over this appeal and issued a show cause order to the parties on February 24,
2017.  Both parties, Consultis and the Department of Veterans Affairs (VA or respondent),
replied to the order.  After reviewing their responses and the appeal file, the Board finds that
the decision by the task order contracting officer was insufficient to create jurisdiction over
this dispute, since it requires an interpretation of the schedule contract provisions by the
schedule contracting officer. The appeal is dismissed for lack of jurisdiction.


CBCA 5458 2
Background
On October 1, 2013, the VA awarded task order VA248-14-F-0293 to Consultis under
its Federal Supply Schedule (FSS) contract (GS-35F-0243T) with the General Services
Administration (GSA).  The task order was for the performance of information technology
services, including installing, configuring, and maintaining the organization’s server and
workstations.  In accordance with the task order statement of work, appellant was required
to supply all necessary personnel, management, administrative support, and technical
services in accordance with the statement of work.  The provision referencing task order
terms and conditions simply states, “Not Specified In The Contract.”1  The task order period
of performance was for one base year and four option years.  Multiple modifications to the
contract were issued to extend the performance period, exercise options, and add funding. 
During performance, a contractor employee raised concerns about the wage rates
being paid to contractor personnel.  An inquiry by the Department of Labor (DOL) ensued
regarding applicability of the Service Contract Labor Standards (SCLS) to the contract.  A
wage and hour investigator in Orlando, Florida, determined that while the Service Contract
Act (SCA)2 clauses were included in the original GSA contract, the applicable wage
determinations were not.  The wage and hour office approached both the GSA contracting
officer and the VA contracting officer and requested that they add the appropriate wage
determinations to the task order.  Both contracting officers initially declined to add them. 
For this reason, the wage and hour office determined that it had no enforcement authority
over the issue.  
Performance of the task order ended on September 30, 2015, with no changes to wage
rates.  Nearly six months later, on March 10, 2016, the VA contracting officer issued a
unilateral modification to the task order, which incorporated four Department of Labor wage
determinations for the place of performance for the task order.  The modification provided
the contractor with a thirty-day period to file for a wage adjustment as a result of the
incorporation of the wage determinations.  On May 11, 2016, appellant submitted a letter to
the division chief for services contracting of “Network Contracting Office 8,” in Tampa,
Florida.  In accordance with the instructions contained in the modification, the letter
requested supplemental payment from the VA as a result of the wage determinations, and
referred to an attached “invoice” showing cost calculations per employee for various labor
1  The task order specifically included Federal Acquisition Regulation (FAR) clauses
pertaining to options, as well as VA clauses.
2  The SCA is now codified at 41 U.S.C. §§ 6701-6707.

CBCA 5458 3
categories.  The letter indicated that appellant would pay the increased wages to its
employees as soon as it received the additional money from the VA to cover those wages.3 
In response, a contracting officer from the same network office as the division chief
informed appellant by letter, dated May 25, 2016, that based on the documentation and
calculations provided, compliance with the SCLS was the appellant’s “sole responsibility.” 
On June 1, 2016, appellant sent a letter to the contracting officer, requesting clarification of
his statement that compliance with the SCLS was appellant’s sole responsibility.  The VA
contracting officer issued a “Contracting Officer’s Final Decision,” dated June 7, 2016,
which denied the payment request without addressing whether a valid claim existed.  Within
ninety days, on September 1, 2016, appellant filed an appeal of the denial to this Board.
In its appeal, appellant seeks various forms of declaratory relief related to the
applicability of the SCLS to the task order and, in the alternative, a price adjustment in the
event declaratory relief is not granted.  On January 23, 2017, appellant moved to amend its
complaint by withdrawing three of the four grounds for its appeal, including the monetary
request.4  In reviewing the motion and the materials in the record, the Board raised
jurisdictional concerns and issued a show cause order to the parties on February 24, 2017. 
As explained in the order, our jurisdiction to adjudicate contract disputes derives from the
Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (2012), which requires, as a
prerequisite to review by the Board, a contracting officer’s decision or deemed denial.  Id.
§ 7103.  Our jurisdictional concerns relate to the decision by the task order contracting
officer.  Specifically, the Board noted that the decision was signed by the ordering activity
contracting officer.  The ordering activity in this case was the VA.  The contract was a task
order placed under appellant’s FSS contract with GSA.  Two different contracting officers
may be involved in a task order issued under an FSS contract.  The nature of the dispute will
determine which contracting officer ultimately addresses it.  
Discussion
FAR 8.406-6 requires that disputes pertaining to the terms and conditions of schedule
contracts be referred to the schedule contracting officer for resolution under the CDA,
3  It appears that the letter and invoice were not offered as a claim since neither
appears to comply with the certification requirements of 41 U.S.C. § 7103(b).
4  Appellant asserted that three appeal grounds were “arguably not ripe for judicial
determination.”  The Board does not decide the motion due to its jurisdictional concerns, and
therefore, makes no findings on whether those grounds are ripe for review by the Board.

CBCA 5458 4
whereas disputes pertaining to performance of orders may be handled by the ordering activity
contracting officer.  48 CFR 8.406-6 (2013). 
In Sharp Electronics Corp. v. McHugh, 707 F.3d 1367, 1374 (Fed. Cir. 2013), the
Federal Circuit held that “FAR 8.406-6 does not authorize an ordering [contracting officer]
to decide a dispute requiring interpretation of schedule contract provisions, in whole or in
part, regardless of whether the parties frame the dispute as pertaining to performance.” 
Although the focus of this appeal is the applicability of the wage determinations to the task
order, we find that the resolution of that issue necessarily requires an examination and
interpretation of the terms and conditions of the schedule contract.  Simply because the terms
and conditions are not specified in the task order does not mean they do not apply or that
none exist.  The SCA applies by its own terms and conditions.  We are not persuaded that
clauses mandated by statute in the FSS contract, including those mandating compliance with
the SCLS, cannot be enforced if they are not expressly incorporated into the task order.  The
task order comes into existence under the schedule contract.  Moreover, assertions amounting
to waiver of SCLS compliance based on promises made between the parties or the bounds
of DOL’s enforcement authority are unconvincing.  Whether the VA contracting officer
merely made explicit (by issuing the modification) what the contract already requires is an
issue of contract interpretation that is appropriate for consideration by the GSA contracting
officer.  At the very least, it is a mixed issue, involving both performance of the order and
interpretation of the schedule contract, which, under Sharp Electronics, also requires a
decision from the GSA contracting officer.   
  
Decision
For the foregoing reasons, this appeal is DISMISSED FOR LACK OF
JURISDICTION.
_________________________________
KATHLEEN J. O’ROURKE
Board Judge
We concur:
_________________________________ _________________________________
JOSEPH A. VERGILIO H. CHUCK KULLBERG
Board Judge Board Judge