DENIED: May 31, 1994 GSBCA 12426 MERIT CONSTRUCTION COMPANY, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Gerald F. Friauf, President of Merit Construction Company, Cedar Rapids, IA, appearing for Appellant. Michael T. Brincks, Office of Regional Counsel, General Services Administration, Kansas City, MO, counsel for Respondent. Before Board Judges BORWICK, NEILL, and GOODMAN. GOODMAN, Board Judge. This appeal arises from a contract between appellant, Merit Construction Company (Merit), and respondent, the General Services Administration (GSA), for the renovation and expansion of the Herbert Hoover Presidential Library in West Branch, Iowa. Merit appeals a contracting officer's denial of its claim for additional costs allegedly incurred by its subcontractor, R.M. Boggs Co., Inc. (Boggs), arising from three separate claim items. Respondent has filed a motion to dismiss the appeal as to one of the claim items, alleging that the Board lacks jurisdiction. We deny respondent's motion and deny the appeal as to the three claim items, as discussed below. Findings of Fact The Contract 1. On November 30, 1990, the GSA awarded contract number GS-06P-90-GYC-0245 (the contract) to Merit for the expansion and renovation of the Herbert Hoover Presidential Library located on Parkside Drive in West Branch, Iowa. Appeal File, Exhibits 1, 2. Wage Determination Claim Item 2. The contract contained Federal Acquisition Regulation (FAR) clause 52.222-6 -- DAVIS BACON ACT (FEB 1988), which stated, in relevant part: (a) All laborers and mechanics employed or working upon the site of the work will be paid . . . the full amount of wages and bona fide fringe benefits . . . due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics. (b)(1) The Contracting Officer shall require that any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. . . . . (2) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the Contracting Officer agree on the classification and wage rate (including the amount designated for fringe benefits, where appropriate), a report of the actions taken shall be sent by the Contracting Officer to the Administrator of the Wage and Hour Division, . . . U.S. Department of Labor . . . . The Administrator or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the Contracting Officer or will notify the Contracting Officer within the 30-day period that additional time is necessary. Appeal File, Exhibit 1 (Vol. 1, GSA Form 3505); 48 CFR 52.222-6 (1990). 3. The contract also included FAR clause 52.222-11 -- SUBCONTRACTS (LABOR STANDARDS)(FEB 1988), which read, in relevant part: (a) The Contractor or subcontractor shall insert in any subcontracts the clauses entitled Davis-Bacon Act, . . . Disputes Concerning Labor Standards, . . . and also a clause requiring subcontractors to include these clauses in any lower tier subcontracts. The Prime Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with all the contract clauses cited in this paragraph. Appeal File, Exhibit 1 (Vol. 1, GSA Form 3505). 4. The contract also included FAR clause 52.222-14 -- DISPUTES CONCERNING LABOR STANDARDS (FEB 1988), which read: The United States Department of Labor has set forth in 29 CFR Parts 5, 6, and 7 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. Appeal File, Exhibit 1 (Vol. 1, GSA Form 3505). 5. The contract included general wage decision number IA90- 12 (wage decision), dated May 25, 1990, issued by the United States Department of Labor (DOL). This wage decision did not include the classification pipe/duct insulator, and stated: "Unlisted classifications needed for work not included within the scope of the classifications listed may be added after award only as provided in the labor standards contract clauses (29 CFR 5.5 (a)(1)(ii))."[foot #] 1 Appeal File, Exhibit 1 (Vol. 1). 6. Merit had based its bid on a quotation from its subcontractor Boggs, who had based its quotation for pipe/duct insulators upon what was characterized as the "normal wage scale" of its subcontractor, Quad Cities Insulation, Inc. (Quad), of $7.26 per hour. Appeal File, Exhibit 16. 7. Merit submitted to the contracting officer a request for authorization of additional classification and rate, dated March 10, 1992, by which Merit sought DOL approval for inclusion of the classification pipe/duct insulator at a wage rate of $7.26 per hour, which was Quad's normal hourly wage rate for this classification of worker. Appeal File, Exhibit 10. 8. The contracting officer recommended approval of appellant's request for authorization of additional classification and rate for inclusion of the classification pipe/duct insulator at a wage rate of $7.26 per hour and forwarded the request to the Wage and Hour Division, Employment Standards Administration, DOL, in accordance with 29 CFR 5.5(a)(1)(ii) and FAR 52.222-6(b)(2). Appeal File, Exhibit 10. ----------- FOOTNOTE BEGINS --------- [foot #] 1 The requirements of 29 CFR 5.5(a)(1)(ii) contain the contract language of FAR clause 52.222-6. ----------- FOOTNOTE ENDS ----------- 9. By letter to the contracting officer, dated August 6, 1992, the Director, Division of Wage Determinations, Wage and Hour Division, Employment Standards Administration, DOL, approved Merit's request for the addition of the classification pipe/duct insulator, but denied the request for a wage rate of $7.26 per hour. The DOL found that Merit's proposed wage rate, including any fringe benefits, did not bear a reasonable relationship to any of the wage rates contained in wage decision IA90-12. The letter established a minimum wage rate for the classification, stating that the DOL "would not take exception to a rate of at least $9.59." Additionally, the letter stated that "[t]his matter is subject to further review if any interested party should wish to present additional information for reconsideration." Appeal File, Exhibit 11. 10. By letter dated August 11, 1992, the contracting officer provided Merit with a copy of the DOL's decision of August 6, 1992, and stated: The Department of Labor has not approved the request for the additional classification and wage rate for Pipe/Duct Insulator at $7.26. However, they would not take exception to a rate of $9.59, as stated on the attached form from U.S. Department of Labor dated August 6, 1992. You must either pay the accepted rates [$9.59] or you may resubmit a request for the Pipe/Duct Insulator wage rate, other than the rejected rate of $7.26. For resubmission, attached is a Request for Authorization of Additional Classification and Rate for your completion and return to this office. Appeal File, Exhibit 12. 11. Merit did not request reconsideration of the DOL's decision to allow for an hourly wage rate of $9.59 instead of an hourly wage rate of $7.26. Quad paid its employees the $9.59 hourly wage rate approved by the DOL, reimbursing the employees for the differential for back wages paid prior to the DOL determination. Appeal File, Exhibit 17 at 3. 12. Merit received from Boggs a claim dated August 28, 1992, which stated: Attached you will find a request for extra . . . to compensate Quad City Insulation Company for the additional labor costs they incurred as a result of the wage determination by the Labor Department. At the time the project was bid there was no wage rate shown for insulators and therefore they [Quad Cities Insulation, Inc.] used their normal rate [$7.26 per hour] which is considerably less than that which the Labor Department determined [$9.59 per hour]. The claim was computed as follows: $3,031.77 additional wages paid eight employees 2/10/91- 8/23/92 $ 784.32 25.87% (insurance, tax, workman's compensation) $ 705.98 18.5% (overhead) $4,522.07 subtotal $ 452.21 10% profit $4,974.28 total Quad City Insulation, Inc. price quotation $ 248.71 R.M. Boggs Company 5% overhead and fee $5,222.99 subtotal $ 522.00 R.M. Boggs Company 10% overhead and fee $5,744.99 total R.M. Boggs Company price quotation to Merit Construction Company Merit forwarded the claim to the contracting officer on January 18, 1993. Appeal File, Exhibit 16. 13. In a letter dated March 17, 1993, the contracting officer issued a final decision denying Merit's claim of $5,745 for additional wages paid by Quad. Appeal File, Exhibit 17. Finned Tube Radiation Claim Item 14. The contract contained specification Section 15830 - TERMINAL UNITS, part 2.1, FINNED TUBE RADIATION, which read, in relevant part, as follows: A. General: Provide finned tube radiation of lengths and in locations as indicated, and of capacities, style, and having accessories as indicated on the drawings. . . . . C. Available Manufacturers: Subject to compliance with requirements, manufacturers offering finned tube radiation which may be incorporated in the work include, but are not limited to, the following: 1. Dunham-Bush, Inc. 2. Slant/Fin Corp. 3. Standard Fin-Pipe Radiator Corp. 4. Sterling Radiator; Div. of Reed National Corp. 5. Trane (The) Co. 6. Vulcan Radiator Co. Appeal File, Exhibit 9. 15. The project design firm under contract to GSA, Howard Needles Tammen and Bergendorf (HNTB), prepared mechanical drawing number 94-6-15, dated September 7, 1990, containing the specifications for the fin tube radiation, which included the following language: Fin Tube Radiation FT-1 Vulcan Radiator Corp. "Linovector" or equal, fin tube radiation with Style DT flat top enclosure with continuous "Pencil-Proof" mini louvres end to end on top of enclosure. Provide 4-1/4" wide x 12" high enclosure, color as selected by the Architect. Enclosure shall be constructed from min 16 ga. steel. Provide "Dura-Mount" support hardware with Type B full height back. Provide 1" copper element tube with 3-1/4" aluminum fins to supply 910 btuh/ft with 2.0 gpm of 180o water. Provide end trim accessory and access doors to service valves. FT-2 Vulcan Radiator Corp. "Custom Series" fin tube enclosure with curved enclosures to match FT-1 enclosure. Contractor shall verify exact radius conditions from architectural plans and exact site conditions for a smooth flowing appearance. All mounting hardware shall be similar to that for FT-1. Fin tube elements shall be similar to FT-1 to supply 930 Btuh/ft with 3.0 GPM of 180o water. Provide end trim and access doors to service valves. Equivalent supplier acceptable. Fintube elements and connected piping shall be curved to match enclosure. Appeal File, Exhibit 9. 16. Merit subcontracted with Boggs to procure and install the finned tube radiation. Boggs solicited bids from potential suppliers and received four bids from three suppliers offering to provide Boggs with the finned tube radiation specified in the contract: 1. MarvSmith, Inc. Sterling Fintube $ 6,470.00 2. Hydronic Energy Co. Dunham Bush Fintube $12,875.00 3. Hydronic Energy Co. Runtal Radiation $ 7,806.00[foot #] 2 4. B.G. Peterson Co. Sterling Fintube $ 6,470.00 Appeal File, Exhibit 16. 17. By letter dated January 2, 1991, Boggs informed Merit that it had selected the alternate bid submitted by Hydronic Energy Co. for the Runtal Radiation priced at $7,806. Appeal File, Exhibit 4. 18. On January 21, 1991, HNTB rejected the Runtal Radiators because the Runtal Radiators did not conform to specifications and drawings contained in the contract, stating: Submitted is rejected because material submitted does not conform to specifications and drawings. If a material substitution is to be considered, documentation required by the [Value Incentive Clause], GSA Form 2653, included in Volume I of IV of the specification, must be submitted. Fin tube enclosure and fin tube shall be curved, not mitered, to match wall contour as required on drawing 94-6-15. Appeal File, Exhibit 5. 19. On January 30, 1991, Boggs executed purchase order number 309-410, ordering from Affiliated Steam Equipment Company, Davenport, Iowa,[foot #] 3 Sterling finned tube radiation. Appeal File, Exhibit 16. 20. On February 8, 1991, Boggs submitted the shop drawings for the Sterling finned tube radiation to HNTB for review and approval. Appeal File, Exhibit 16. 21. On February 13, 1991, HNTB reviewed the mechanical drawings for the Sterling finned tube radiation submitted by Boggs and marked the drawings "AMEND AND RESUBMIT." Appeal File, Exhibit 16. 22. On February 19, 1991, Merit transmitted a letter to Boggs stating that HNTB had rejected the shop drawings for the ----------- FOOTNOTE BEGINS --------- [foot #] 2 Hydronic Energy Co. offered Runtal Radiation as an alternative to the Dunham Bush Fintube. [foot #] 3 Apparently, at some undetermined time between Boggs' original bid from MarvSmith, Inc., for the Sterling finned tube radiation and the time of appellant's filing of this appeal, Affiliated Steam Equipment Company had purchased MarvSmith, Inc. Appeal File, Exhibit 16. ----------- FOOTNOTE ENDS ----------- Sterling finned tube radiation and to "[s]ubmit shop drawings showing curved fin tube unit construction." Appeal File, Exhibit 16. 23. On March 6, 1991, Boggs received vendor quote #3006-P from Walters Climate, Inc., stating that it would supply Boggs with Vulcan finned tube radiation at a price of $13,622. Appeal File, Exhibit 16. 24. On March 21, 1991, Boggs transmitted to Merit a letter which stated, in part: We used Runtal in our bid because we felt the installation would be easier and less problem to install, besides being a more attractive and up to date product. The Vulcan Fintube is not represented in our area and we were unable to secure a quotation at bid time. We are requesting this change as a no contract cost change order because we feel it is beneficial to the owner and we had the additional cost of Runtal in our bid. Appeal File, Exhibit 18. 25. On May 10, 1991, Merit forwarded a letter to HNTB which stated, in part: It does appear that R.M. Boggs had only received three quotations on the day of the bid, two of which were approved manufacturers, but were incomplete and one that R.M. Boggs had considered complete as an equal. This was the Runtal. When the Runtal system submittal came back rejected by the architect, R.M. Boggs was forced to track down a complete quotation from Sterling. At this time, Sterling informed R.M. Boggs that even though Sterling owned Vulcan, R.M. Boggs would have to deal with Vulcan direct, which in turn escalated the price. Merit believes that if Sterling would have been straight forward with R.M. Boggs on bid day this dilemma could have been avoided. But because they were not, R.M. Boggs is now being asked to provide equipment that the owner never paid for. Merit Construction is in full understanding that this situation was not caused by the owner . . . . Appeal File, Exhibit 7. 26. By letter dated June 14, 1991, GSA responded to Merit's letter dated May 10, 1991, which stated: We regret that your subcontractor apparently did not receive complete quotations for fin tube systems meeting specifications prior to bid opening. Your request for compensation for furnishing finned tube radiation as specified, is not justifiable. As you are aware, the runtal units do not conform to the contract requirements. Therefore, you are to furnish finned tube radiation as specified, without additional cost to the Government. Appeal File, Exhibit 16. 27. On June 21, 1991, Boggs placed purchase order number 807-1523 with Walters Climate, Inc., in which Boggs ordered the Vulcan finned tube radiation at a price of $13,622. Appeal File, Exhibit 16. On November 13, 1991, Merit submitted the shop drawings for the Vulcan finned tube radiation for review and approval by HNTB. Id., Exhibit 8. On December 2, 1991, HNTB approved the Vulcan finned tube radiation with "NO EXCEPTIONS TAKEN." Id. 28. On December 14, 1992, Boggs, in a letter transmitted to Merit, filed a "Request For Arbitration" along with attached supporting data and a "Sequence Of Events" dated December 14, 1992, which stated, in part: 1. We were required to install Vulcan Fintube even though Sterling fintube was shown as acceptable in the specifications. . . . . . . . I feel I should be compensated for the difference between the Sterling quote and the Vulcan quote plus tax and mark up because the architect, when he wrote the specification was aware that the only company able to build curved fintubes was the Vulcan Co., yet he indicated in the specification that Sterling Fintube was an acceptable equal. The day of a bid is hectic to put it mildly and if a brand is mentioned as an equal in the specification no further time is given to see if in fact they can meet all aspects of the specifications, you take for granted that the architect or engineer has already done that. Appeal File, Exhibits 16, 18. 29. On January 18, 1993, Merit filed a claim with the contracting officer seeking $9,408. This amount included $8,553, the difference between the quote for the Sterling fin tube and the quote of the product which was accepted, plus sales tax, overhead and profit of R.M. Boggs, and $855 overhead and profit of Merit. Appeal File, Exhibit 16. 30. The contracting officer issued a decision dated March 17, 1993, denying Merit's request for $9,408 and stating, in relevant part: It is unfortunate that your mechanical contractor was given incomplete quotes on bid day. Since the specifications and the drawings are clear as to the type of Terminal Units required, your request for compensation in the amount of $9,408 is denied. Appeal File, Exhibit 17. Honeywell Programmers Claim Item 31. By letter dated March 19, 1992, Boggs notified Merit that it had replaced, for the third time, three parts on a hot water boiler. The letter stated, in relevant part: The items are being destroyed due to momentary power spikes, over which neither the factory nor R. M. Boggs has control. We have been advised by the factory that they will no longer warrant parts that have been destroyed by power spikes and we would like you to notify the owner that we also will not warrant parts or labor on something which is beyond our control. Appeal File, Exhibit 13. 32. By letter dated March 20, 1992, Merit notified GSA of the damage to the hot water boiler and enclosed Boggs' March 19, 1992, letter. Appeal File, Exhibit 13. 33. The GSA contacted the power source, Iowa Light & Power Company (Iowa Power), which then monitored the power being supplied to the Herbert Hoover Presidential Library. Appeal File, Exhibit 16. 34. By memorandum dated July 7, 1992, HNTB set forth the results of its investigation and analysis of the causes and effects of the momentary power spikes which Boggs alleges had occurred during its renovation of the Herbert Hoover Presidential Library. HNTB's letter related that power outages and surges had occurred, but concluded that: In general there does not appear to be any overwhelming evidence that the quality and reliability of electrical power from Iowa Electric is or was sufficiently bad to have caused the Honeywell controller to fail. As the operating data provided with the controller is somewhat general, it is suggested that the above information be forwarded to Honeywell by the contractor. If Honeywell finds the environment too hostile for their controller it will then be necessary to do something corrective. Appeal File, Exhibit 15. 35. On August 26, 1992, Honeywell transmitted a letter to Boggs which stated, in pertinent part: This is intended to clarify Honeywell's position with regard to the failure of two Honeywell BC7000L1000 programmers. These types of failures are normally associated with power surges. Power type failures could be the result of power surges, lighting or switching power sources. Future programmers failing at the Hoover Library will, however, be tested to confirm the cause of the failure. Power surge type failures will no longer be warranteed [sic]. Appeal File, Exhibit 16. 36. By letter dated December 14, 1992, to appellant, Boggs set forth a "Request For Arbitration" along with attached supporting data and a "Sequence Of Events" dated December 15, 1992, which reaffirmed its position that power surges had caused the failure of the boiler parts. Appeal File, Exhibit 16. 37. On January 18, 1993, Merit filed a claim with the contracting officer seeking $3,706 as compensation for damages allegedly caused by power surges. This claim amount included $3,369 for material, labor, sales tax, overhead and profit incurred by Merit's subcontractor, R.M. Boggs, and $337 for Merit's overhead and profit. Appeal File, Exhibit 16. 38. The contracting officer issued a decision dated March 17, 1993, denying Merit's request for $3,706, which stated, in relevant part: During Merit's construction meeting on March 19, 1992, Mr. Dwight Norris of R.M. Boggs stated, "frequent momentary power spikes are damaging mechanisms in the hot water boiler." This statement was made on speculation. . . . . The interoffice correspondence of Howard Needles Tammen and Bergenoff, the project design and construction management firm, dated July 7, 1992, summarized an Electrical Service field study. The Iowa Power and Light Company monitored the incoming primary service. Actual field readings, past history of outages, and the boiler control panel sensitivity to unclean power were studied. . . . . At the time of the alleged momentary power spikes, there was no other damage to any other equipment on the premises. After replacement of the defective "mechanisms," the equipment has performed satisfactor[il]y through the current severe winter. In accordance with Construction Contract Clause 51. GSAR 552.246-75--GUARANTEES (MAY 1989), "(a) Unless otherwise provided in the specifications, the Contractor guarantees all work to be in accordance with contract requirements and free from defective or inferior materials, equipment, and workmanship for 1 year after the date of final acceptance or the date the equipment or work was placed in use by the Government, whichever occurs first." Your request for compensation in the amount of $3,706 is denied. Appeal File, Exhibit 17. The Appeal 39. On May 12, 1993, the Board received appellant's notice of appeal, with accompanying documentation, of the contracting officer's decision denying the three claim items discussed above. Appeal File, Exhibit 18. 40. By letter dated June 1, 1993, appellant informed the Board that all information pertinent to its complaint was contained in the notice of appeal and documentation submitted. 41. The parties agreed to submit the appeal for decision on the record. Conference Memorandum (Aug. 20, 1993). 42. On August 26, 1993, respondent submitted a motion to dismiss for lack of jurisdiction the claim item for additional wages. On November 29, 1993, respondent also submitted a brief with regard to the other two claim items, and appellant filed a response to brief of respondent dated October 15, 1993. Discussion Wage Determination Claim Item The contract required appellant to pay its mechanics and laborers wages and fringe benefits computed at rates not less than those contained in the DOL wage determination attached to the contract. Finding 2. The wage determination attached to the contract did not contain a classification for pipe/duct insulators. Finding 5. Appellant based its bid on the subcontractor's hourly wage rate of $7.26 for this wage classification. Finding 6. The contract obligated the contracting officer to classify any class of laborers or mechanics not listed in the wage determination in conformance with the wage determination. Finding 2. After contract award, appellant and the contracting officer sought to add an additional wage classification for pipe duct/insulators, agreeing to the classification at the specific hourly wage rate of $7.26. Appellant submitted, through the contracting officer, to the DOL, a request for authorization of additional classification and rate for pipe/duct insulators at its subcontractor's hourly wage rate upon which it had based its bid. Findings 7, 8. While the DOL approved the additional wage classification, it did not approve the $7.26 hourly wage rate requested by appellant and recommended by the contracting officer, but stated that it would not take exception to appellant's paying a higher wage rate of at least $9.59 per hour for this wage classification. The DOL also advised appellant that it had a right to request reconsideration of the determination. Finding 9. Appellant did not seek reconsideration of the DOL's decision or otherwise proceed further in the administrative appeal process. Its subcontractor paid its pipe/duct insulators the wage rate of $9.59 to which the DOL had determined it would not take exception. Finding 11. Appellant seeks additional payment for the differential between the rate upon which it based its bid and the wage rate approved by the DOL and paid to the pipe/duct insulators. Finding 12. The contract included the clause contained in FAR 52.222-14 -- DISPUTES CONCERNING LABOR STANDARDS (FEB 1988), that specified the procedures for appellant and respondent to follow regarding any labor standards disputes arising out of the contract. This clause states, in relevant part, that: "[t]he United States Department of Labor has set forth in 29 CFR Parts 5, 6, and 7 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." Finding 4. Respondent has filed a motion to dismiss this portion of the appeal, contending that this Board lacks jurisdiction because this dispute "concerns labor standard requirements" and therefore is within the exclusive jurisdiction of the DOL. Respondent bases its motion on the assertion that appellant now seeks a review of a DOL wage rate determination, which this Board lacks jurisdiction to make. This Board has held that it has no authority to either question the contents of or make changes to contents of wage determinations issued by the DOL which have been subsequently incorporated into contracts by procuring agencies. See JL Associates, Inc. v. General Services Administration, GSBCA 11922, 93-3 BCA 25,939; 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); Kass Management Services, Inc., GSBCA 8819, 88-3 BCA 20,891, at 105,618; A&C Building & Industrial Maintenance Corp., GSBCA 5589, 82-1 BCA 15,634, at 77,232. In these cases, we found that appellant was actually asking the Board to determine the correctness or accuracy of a DOL wage determination, and such a determination was within the exclusive jurisdiction of the DOL. In the instant appeal, appellant chose not to seek reconsideration of the DOL's initial determination and paid the pipe/duct insulators the minimum wage to which the DOL indicated it would not take an exception. Our appellate authority has recently reviewed the jurisdiction of boards of contract appeals and the United States Court of Federal Claims in a similar situation where the contractor proceeded according to the DOL's determination requiring the contractor to pay an hourly wage greater than that which the contractor deemed proper. In Burnside-Ott Aviation Training Center, Inc. v. United States, 985 F.2d 1574 (Fed. Cir. 1993), a contractor's employees classified as "technicians" filed a complaint with the DOL challenging their wage rate classification. The DOL ordered the contractor to reclassify the employees as "aircraft workers" to be paid at a higher hourly rate. The Navy sought reconsideration of the DOL's decision from the DOL's Wage and Hour Division, and when reconsideration was denied, the contractor appealed to the Deputy Secretary of Labor, who affirmed the prior ruling. The contractor then increased the wages of the employees pursuant to the DOL's decision and paid the wage rate differential for back wages. Thereafter, the contractor requested an equitable adjustment when it was required to pay additional compensation. 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. Respondent attempts to distinguish Burnside-Ott, arguing that the contractor in that case challenged the initial DOL decision through the DOL adminiscase process and thereafter accepted the ruling. In contrast, respondent states that "Merit never challenged the DOL's ruling nor has it accepted the ruling on the wage rate." Respondent's Brief at 2- 3.[foot #] 4 We do not believe the instant appeal may be distinguished in this fashion. Even though appellant did not seek reconsideration of the DOL's determination, appellant did abide by the DOL's determination and paid its employees accordingly. Appellant now asserts that it is entitled to relief as the result of complying with the DOL's ruling. Appellant's claim does not challenge the DOL's initial ruling. Rather, appellant predicates its request for relief on that ruling, and asks this Board to determine the effect of that ruling on its contract rights. According to the decision in Burnside-Ott, we do not lose jurisdiction to resolve disputes involving mutual contract rights and obligations if, as in the instant appeal, labor standard issues within the exclusive jurisdiction of the DOL form the partial factual predicate of the dispute between the parties.[foot #] 5 Relying upon that decision, this Board has determined that we have jurisdiction to resolve a dispute where the "focus of [appellant's] claim . . . is on the impact DOL's determination has had on [its] contract rights." P.M. Hagel & Associates, Inc. v. General Services Administration, GSBCA 10742, 94-1 BCA 26,568, at 132,205 (1993). We therefore have jurisdiction to resolve appellant's claim item on this issue. Respondent's motion to dismiss the appeal as to this claim item is denied. The basis of appellant's claim is that "[a]t the time the project was bid there was no wage rate shown for insulators and therefore they [appellant's subcontractor] used their normal rate [$7.26 per hour] which is considerably less than that which the Labor Department determined [$9.59 per hour]." Appellant therefore seeks to increase the contract price and recover as an "extra" the differential between its subcontractor's wage rate upon which appellant based its bid and the minimum wage rate determined by the DOL. Finding 12. ----------- FOOTNOTE BEGINS --------- [foot #] 4 Respondent's motion did not discuss Burnside- _________ Ott Aviation Training Center, Inc. v. United States, 985 F.2d ----------- FOOTNOTE BEGINS --------- 1574 (Fed. Cir. 1993), and the Board requested a supplemental brief as to respondent's position in light of this decision. Appellant did not file a response to either the motion to dismiss or respondent's brief discussing Burnside-Ott. ____________ [foot #] 5 We do not find that it is necessary for appellant to have proceeded further in the DOL's administrative process in order for the DOL's determination to form part of the factual predicate for appellant's request for relief. ----------- FOOTNOTE ENDS ----------- The fact that pipe/duct insulators were not listed in the wage rate determination and appellant based its bid on its subcontractor's wage rate for pipe/duct insulators, which was less than the minimum wage rate determined by the DOL for this classification of worker, is not a basis for relief. The contract clearly set forth the procedures to be followed for paying laborers and mechanics under the contract, and stated a procedure if the contractor employed a class of laborer or mechanic not specified in the labor determination included in the contract documents. All laborers and mechanics employed by the contractor were required to be paid the full amount of wages and bona fide fringe benefits computed at rates not less than those contained in the wage determination attached to the contract, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. If the contractor was to employ a class of laborers or mechanics for which no wage rate was listed, such class was required to be classified "in conformance with the wage determination." Finding 2. The classification of pipe/duct insulators was accomplished by submission of appellant and the contracting officer to the DOL of a request for authorization of additional classification and rate, and by the DOL's determination of a minimum hourly rate of $9.59. The effect of the DOL's determination on appellant's contract rights was simply to require appellant to pay the pipe/duct insulators the wage determined by the DOL, as required by the contract -- computed at rates not less than those contained in the wage determination or subsequently determined by the DOL for classes of laborers not listed in the wage determination. Appellant's paying its pipe/duct insulators the hourly wage determined by the DOL was neither a change to the contract nor a breach of contract which would entitle appellant to relief. Appellant's claim for this item is denied. Finned Tube Radiation Claim Item The specification for finned tube radiation contained a list designated as "Available Manufacturers," which stated that: "Subject to compliance with requirements, manufacturers offering finned tube radiation which may be incorporated in the work include, but are not limited to, . . . ." Finding 14. The specific requirements were set forth in a mechanical drawing. Finding 15. Appellant first offered a product manufactured by Hydronic Energy Co., using the Runtal Radiator finned tubing. Finding 17. The GSA project design consultant rejected this product because it believed that the product could not be curved as required by the contract. Finding 18. Appellant then submitted a product manufactured by Sterling Radiator, which had been listed as an "available manufacturer." Findings 19, 20. This product was also rejected because the tubing was not curved as required. Finding 22. Appellant then offered tubing manufactured by Vulcan Radiator, which also had been listed as an acceptable manufacturer, and this tubing was accepted by GSA. Finding 27. Appellant's claim for this item is $9,408 -- the difference between its lowest quote (received for finned tube radiation manufactured by Sterling Radiator, listed as an "acceptable manufacturer") and the amount it ultimately cost to supply finned tube radiation which GSA would approve. Finding 29. Appellant contends that the product manufactured by Sterling Radiator should have been accepted. Appellant argues that "the specifications list one or more manufacturers that are acceptable. . . . [I]f [a contractor] uses one of the manufacturers listed he is assured that the Architects will accept this equipment." Appellant's Response to Brief of Respondent at 1. We interpret appellant's claim to be that for breach of contract or, alternatively, for a constructive change. Appellant's subcontractor supports this interpretation of the contract based upon its own actions at the time of bidding: The day of a bid is hectic to put it mildly and if a brand is mentioned as an equal in the specification no further time is given to see if in fact they can meet all aspects of the specifications, you take for granted that the architect or engineer has already done that. Finding 28. Contrary to appellant's and its subcontractor's interpretation of the specifications, the specifications contain no assurance that equipment will be accepted if offered from a manufacturer designated as an "available manufacturer," nor does the designation of "available manufacturer" necessarily imply that equipment manufactured by those listed has been previously approved or will be deemed acceptable by respondent. Rather, the specification clearly stated that equipment offered was to be "subject to compliance with requirements," Finding 14, and specific requirements were set forth on an accompanying mechanical drawing, Finding 15. To read the specification as appellant and its subcontractor suggest would render meaningless the caveat that the equipment must be subject to compliance with requirements, and also would render meaningless the requirements themselves. Contract language is to be interpreted according to its plain meaning, and not so as to render any term meaningless. CRC Systems, Inc. v. General Services Administration, GSBCA 11173, 93-2 BCA 25,842. We deny appellant's claim for this item. Honeywell Programmers Claim Item Appellant seeks $3,706 as compensation to its subcontractor for damage to various parts to boiler equipment allegedly damaged by power surges. Findings 31, 32. Appellant and its subcontractor do not allege that GSA caused or could have prevented the power surges. However, appellant believes it is entitled to compensation because the alleged power surges were beyond its control. Finding 31. No conclusive evidence was presented as to the cause of the equipment failure. Even so, appellant has failed to identify any contract provision, regulation, or statute, nor are we aware of any, which places the risk on GSA rather than upon appellant for loss caused by reasons beyond the control of either party. We deny appellant's claim for this item. Decision Respondent's motion to dismiss the appeal with regard to the claim item for increased wages for lack of jurisdiction is DENIED. The appeal is DENIED. __________________________ ALLAN H. GOODMAN Board Judge We concur: __________________________ __________________________ ANTHONY S. BORWICK EDWIN B. NEILL Board Judge Board Judge