PSBCA Nos. 5276 and 5315
January 05, 2009
Appeals of
WEBCO TRANSPORTATION CORP
PSBCA Nos. 5276 and 5315
Under Contract No. HCR 19731
APPEARANCE FOR APPELLANT:
Knut Knutsen, President
Webco Transportation Corp.
APPEARANCE FOR RESPONDENT:
Douglas J. Colton, Esq.
Office of the General Counsel
United States Postal Service
475 L'Enfant Plaza SW
Washington, DC
OPINION OF THE BOARD
Appellant, Webco Transportation Corp., has filed timely appeals from two contracting officer final decisions. The first final decision terminated Appellant's mail transportation contract for default. The second assessed reprocurement costs against Appellant resulting from the default termination. At the joint request of the parties, the appeals are being decided on the record in accordance with 39 C.F.R. § 955.12. As the parties did not request that the matter of quantum be addressed separately, both entitlement and quantum are at issue in this appeal.
FINDINGS OF FACT
1. On April 10, 2002, Respondent, United States Postal Service, renewed contract HCR 19731 (contract) with Appellant for a four year term at an annual rate of $193,100.00. The contract provided for the transportation of mail between the Wilmington, Delaware Processing and Distribution Center (Wilmington P&DC) and local post offices in the Wilmington area. The performance period of the contract began on April 1, 2002, and was to continue through March 31, 2006. (Appeal File, Tab (AF) 1).
2. Under the contract Respondent was authorized to terminate the contract for default if Appellant failed to perform the requirements of the contract within the time allowed. Respondent could also terminate Appellant for failing to perform any of the other provisions of the contract, provided that such termination could occur only if Appellant failed to cure the failure within three days after receiving notice from the contracting officer specifying the failure. (AF 1, Contract Clause H.4, TERMINATION FOR DEFAULT (Clause B-13) (January 1997) (Modified), subsection a).
3. In the event of a termination for default, the contract authorized Respondent to acquire similar services, and made Appellant liable to Respondent for excess costs (AF 1, Contract Clause H.4, TERMINATION FOR DEFAULT (Clause B-13) (January 1997) (Modified), subsection b).
4. The contract also provided, “If after termination, it is determined that [Appellant] was not in default . . . the rights and obligations of the parties will be the same as if the termination had been issued for convenience.” (AF 1, Contract Clause H.4, TERMINATION FOR DEFAULT (Clause B-13) (January 1997) (Modified), subsection g).
5. The contract required that Appellant:
a. provide a van with a "full roll-up type [rear door] equipped with security locking device, safety chain and pull down-strap." (AF 1, Contract Clause B.2.e, Vehicle Requirements and Specifications).
b. transport mail "in an enclosed, water-proof compartment, equipped with secure locking devices, which shall be locked at all times except when access thereto is required for performance of service under this contract." (AF 1, Contract Clause B.3.c, General Requirements and Prohibitions).
c. transport "all mail tendered for transportation under this contract . . . with certainty, celerity, and security, in accordance with the operating schedule" set forth in the contract (AF 1, Contract Clause B.3.a, General Requirements and Prohibitions).
6. The contract also provided that it was subject to the Service Contract Act (SCA), 41 U.S.C. § 351, et seq., and required that Appellant comply with certain related contract provisions. Among those provisions was the requirement that Appellant pay each service employee employed in the performance of the contract no less than the wage and fringe benefits determined by the Secretary of Labor. The contract further provided that "any failure to comply with the requirements of [the SCA] clause may be grounds for termination of the right to proceed with the contract work. In this event, the Postal Service may enter into other contracts or arrangements for completion of the work, charging [Appellant] in default with any additional costs." (AF 1, Contract Clause H.32, SERVICE CONTRACT ACT (Clause 9-10) (January 1997); Stipulations (Stip.) 5).
7. The contract SCA clause also provided that,
"[d]isputes arising out of the labor standards provisions of this contract are not subject to the Claims and Disputes clause but must be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR Parts 4, 6, and 8. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the Postal Service, the U.S. Department of Labor, or the employees or their representatives."
(AF 1, Contract Clause H.32, SERVICE CONTRACT ACT (Clause 9-10) (January 1997), subsection r).
Termination for Default and Excess Reprocurement Costs
8. On October 29, 2004, during performance of the contract two containers of mail fell from the back of Appellant's moving vehicle onto an active roadway. The driver retrieved the mail and placed it back in the vehicle and continued to his destination. After an investigation, it was determined that the mail was not properly restrained in the cargo area and that the door was not properly locked. (AF 3, 4; Stip. 13).
9. By memorandum dated December 15, 2004, the Wilmington P&DC Transportation Manager advised all highway contractors and drivers of a number of what he considered to be "major yard safety policies", including that when trucks were parked at the dock, "all wheels must be chocked" and "engines must be turned off." These practices were put into effect to prevent vehicles from being operated by unauthorized people or becoming "runaway" vehicles. (Declaration of M. Werner (Werner Decl.), ¶¶ 3, 4, and Exh. B; Stip. 24).
10. On December 15, 2004, one of Appellant’s drivers failed to turn off the engine and chock the wheels while the truck was parked at the dock. Both Appellant’s owner and the driver were orally reprimanded on December 16, 2004, by the Transportation Manager and advised that the violations were serious, and that future non-compliance would be cause for "removal as the contractor." (AF 6-8; Werner Decl., ¶ 5, and Exh. A; Stip. 22, 23, 26).
11. On March 23, 2005, the same driver again failed to turn off the engine and chock the wheels on the truck while parked at the dock (AF 7-8; Werner Decl., ¶ 6; Stip. 27). The driver advised the Acting Administrative Official that while he understood that "it was wrong to leave the engine running" he did so because he was afraid the truck would not start again if he turned it off (AF 6; Stip. 27).
12. On April 6, 2005, the contracting officer issued a final decision terminating the contract for default for Appellant's "failure to perform service according to the terms of the contract." Specifically, the contracting officer mentioned Appellant's second failure to turn off the truck’s engine and chock the wheels at the dock despite previous warnings (AF 10). Respondent withheld unpaid funds earned by Appellant in the amount of $12,583.91 "as an offset for the potential excess reprocurement costs." (Declaration of K. Harris (Harris Decl.), ¶¶ 15, 9, and Exh. E).
13. By Notice of Appeal dated May 6, 2005, Appellant filed a timely appeal of the contracting officer’s final decision (AF 12).
14. When the contract was renewed on April 10, 2002, its annual rate was $193,100.00 (AF 1). At the time of termination, the annual rate of the contract was $218,720.27 (Harris Decl., ¶ 19, and Exh. D; AF 11, 13).
15. As a result of the contract termination, Respondent undertook steps to reprocure the services required under the terminated contract. Initially, Respondent awarded a short term, emergency contract for the same service provided under Appellant’s contract at an annual contract amount of $298,000.00. Subsequently, Respondent solicited bids to provide the same service on a longer term basis. Three bids were received. The lowest bidder withdrew its offer from consideration. Respondent awarded a replacement contract to the remaining bidder with the lowest price to provide the service at an annual rate of $276,072.35.[1] (Harris Decl., ¶ 19, and Exh. D).
16. On October 24, 2005, the contracting officer issued a final decision assessing against Appellant the excess reprocurement costs associated with Respondent’s termination of the contract in the amount of $14,623.74. Respondent developed the excess transportation cost figure by subtracting the annual amount of the contract with Appellant ($218,720.27) from the annual amount of the replacement contract ($276,072.35) and dividing the difference by 365 days to determine the daily excess reprocurement costs. Respondent assessed excess reprocurement costs against Appellant for 91 of the 359 days remaining under the contract with Appellant during which service would have been required had the contract not been terminated. Respondent also assessed costs of $325.00 for the administrative costs it incurred in awarding the replacement contract. (Harris Decl., Exh. D; AF 13).
17. By Notice of Appeal dated November 15, 2005, Appellant filed a timely appeal of the contracting officer’s final decision assessing reprocurement costs.
Service Contract Act
18. After the contract was terminated for default, the contracting officer was advised by a June 13, 2005 letter from the Wage and Hour Division of the Department of Labor (DOL) that DOL was investigating Appellant for possible violations of the SCA that occurred throughout the term of the contract because of Appellant’s alleged failure to pay its employees the required wages and benefits. DOL requested that the contracting officer withhold from monies otherwise due Appellant under the contract the amount of $47,339.39, the amount DOL computed as Appellant’s underpayment. (Harris Decl., ¶ 14, and Exh. A).
19. On February 2, 2006, the Philadelphia Regional Solicitor’s Office for the DOL filed a complaint against Appellant with the DOL Office of Administrative Law Judges alleging specific SCA violations and seeking recovery from Appellant in the amount of $47,339.39 (Harris Decl., Exh. C).
20. Section 6.18 of 29 C.F.R., entitled "Consent findings and order" provides that the parties in proceedings before an Administrative Law Judge (ALJ) may enter into consent findings and an order disposing of the proceeding in whole or in part. Subparagraph (c) of this section further provides, in part, that
"[w]ithin 30 days after receipt [from the parties] of an agreement containing consent findings and an order disposing of the disputed matter in whole, the Administrative Law Judge shall, if satisfied with its form and substance, accept such agreement by issuing a decision based on the agreed findings and order."
29 C.F.R. §6.18 (c).
21. On February 2, 2006, Appellant and the DOL Regional Solicitor’s office filed with the ALJ a proposed "Consent Findings And Order" executed by representatives of both parties stating, among other things,
"6. On April 13, 2005, the Department of Labor Wage-Hour Division initiated an investigation of Respondents, which revealed that Respondents failed to promptly pay certain employees required minimum monetary wages and fringe benefits [under USPS Contract No. 19731] in violation of the SCA.
7. Counsel for the Department of Labor and Respondent . . . discussed this matter and desire to fully resolve this matter without the burden, expense and delay of litigation.
* * *
9. In order to resolve this matter without further litigation, Respondents hereby authorize the USPS to release funds in the amount of $12,583.91 to the U.S. Department of Labor, Wage and Hour Division.
10. Respondents also hereby agree to be placed on the list of persons who have violated the SCA and associated regulations and who are to be denied the award of any contract with the United States for the three-year period as provided in 41 U.S.C. § 354.
11. This Order shall have the same force and effect as an order made after a full hearing.
* * *
15. The parties waive any further procedural steps before the Office of Administrative Law Judges and the Administrative Review Board regarding the matters that are the subject of this agreement.
16. The parties waive any right to challenge or contest the validity of these consent findings and order.”
(Harris Decl., ¶ 14, and Exh. E).
22. In an "ORDER APPROVING CONSENT FINDINGS AND ORDER" (Order) issued February 21, 2005, the ALJ assigned to this matter included the following pertinent language:
"The United States Department of Labor (DOL) filed a Complaint in the above-captioned matter. In the Complaint, DOL alleges that Respondents failed and refused to pay service employees their minimum monetary wages and fringe benefits as required by the [SCA]. The alleged infractions resulted in a breach of contract with the United States Government and violation of the SCA, and the regulations.
On February 10, 2006, the parties filed a Consent Findings and Order. Review of the Consent Findings and Order shows that it comply [sic] with 29 C.F.R. § 18.9 and that it fairly and adequately resolve [sic] all pending issues pertaining to this matter. Therefore, the Consent Findings and Order attached hereto and incorporated herein, is APPROVED and ADOPTED in its entirety."
(Harris Decl., Exh. E) (emphasis added).
23. By letter to the Contracting Officer dated March 13, 2006, DOL enclosed a copy of the ALJ’s Order and asked that $12,583.91 be remitted to DOL (Harris Decl., ¶ 14, and Exh. B).
DECISION
Termination
Appellant did not file a post-hearing brief. Accordingly, we have ascertained Appellant’s arguments from its Complaint and other documents contained in the record. Appellant argues that its safety record was not bad enough to warrant termination and cites its otherwise exemplary record as a Postal Service contractor. Respondent contends, however, that the safety violations support the termination. Respondent also contends that the SCA violations and resulting debarment by DOL provide independent support for the termination.
Appellant was required to comply with the SCA provisions contained in the contract. Specifically, Appellant was required to pay its employees performing work under the contract no less than the wages and benefits determined by the Secretary of Labor. Failure to do so could be grounds for termination for default (Finding 6). In order to support a termination for default Respondent must demonstrate that the DOL has found under its established procedures that Appellant has violated the SCA requirement that it pay its employees the prescribed minimum wages and benefits. See Herman B. Taylor Constr. Co. v. Barram, 203 F.3d 808 (Fed. Cir. 2000); Glazer Construction Co., Inc. v. United States, 52 Fed. Cl. 513 (2002); American Photographic Industries, Inc., ASBCA Nos. 29272, 29832, 90-1 BCA ¶ 22,491, aff’d on motion for recon., 90-2 BCA ¶ 22,728.
The dissent, citing language from Taylor, concludes that the facts present here do not constitute a finding by DOL that a violation of the contract’s labor provisions occurred, because there was neither a final decision by an ALJ after a hearing nor a failure by a contractor to request a hearing. In Taylor, the government relied on "consent findings" that were entered into by DOL and Taylor in settlement of a DOL administrative proceeding during its adjudicatory phase. The consent findings in Taylor contained a statement of DOL’s position that violations of Davis-Bacon and the Contract Work Hours and Safety Act[2] (CWHSA) had occurred, but also contained a statement acknowledging that Taylor’s position was that no such violations occurred. Further, the consent findings contained a disclaimer that stated that "neither this agreement to release back wages nor execution of this agreement shall constitute or be construed as liability or an admission on the part of the contractor of any violation of the Davis-Bacon Act … or its implementing regulations." Under these facts, the Court held that the words of the consent findings could not "fairly be construed as a determination by the Labor Department that Taylor violated the labor provisions of the contract."
In contrast, the words of the consent findings before us here, although similarly agreed to as part of a settlement between DOL and Appellant, do not contain a recitation of any differing positions of the parties that are present in Taylor. Rather, as a result of mutual agreement by the parties, the consent findings state explicitly that DOL’s investigation "revealed that [Appellant] failed to promptly pay certain employees required minimum monetary wages and fringe benefits … in violation of the SCA" [emphasis added]. Further contrasting Taylor, the consent findings before us do not contain the disclaimer language found in Taylor that provided that execution of the agreement did not constitute an admission by the contractor of a statutory violation. Finally, in his February 21, 2006 Order approving the consent findings, the Administrative Law Judge specifically adopted the conclusions of the parties referenced above and independently concluded that a violation of the SCA and its regulations had occurred.
More specifically, the dissent concludes that the ALJ’s Order (Finding 22) did not constitute a determination that Appellant violated the SCA. The dissent, however, does not attach appropriate significance to the Order. In the Order, the ALJ refers to the fact that DOL “alleges” that Appellant violated the SCA. He then goes on to say that "[t]he alleged infractions resulted in a . . . violation of the SCA…" (emphasis added). He does not express doubt or state the alleged violations, if proven, would result in a violation of the SCA. Rather, he makes a definite statement that the "alleged infractions" – i.e., those alleged by DOL – resulted in a violation of the SCA. This conclusion is specifically supported by the language adopted by the parties to the Consent Findings and Order (Consent Order) cited in Finding 21.
The dissent also fails to acknowledge that in his Order the ALJ specifically "APPROVED and ADOPTED in its entirety" the Consent Order, one of the provisions of which stated, as required by the DOL regulations (29 C.F.R. §18.9(b)(1)), that the parties agreed that the Consent Order "shall have the same force and effect as an order made after a full hearing."
Thus, consistent with the language in Taylor, cited by both the majority and dissent, there has been, in effect, "a final decision by an ALJ after a hearing" finding a violation by Appellant of the contract’s labor provisions. Thus, Appellant’s actions under the contract were determined by the DOL to have constituted a violation of the Service Contract Act provisions of the contract, and, accordingly, they support the contracting officer’s termination of the contract.
This result holds true, even though the contracting officer did not become aware of Appellant’s failure to comply with the Service Contract Act until after he had terminated the contract based upon Appellant’s failure to follow certain safety practices. Kelso v. Kirk Bros. Mechanical Contractors, Inc., 16 F.3d 1173, 1175 (Fed. Cir. 1994); Derrick Van Greene, PSBCA Nos. 5093 and 5215, 07-1 BCA ¶ 33,471, aff’d on motion for recon., 2007 WL 54,42324; Arthur Napier, PSBCA Nos. 3044, 3140, 94-2 BCA ¶ 26,695; American Photographic Industries, Inc., ASBCA Nos. 29272, 29832, 90-1 BCA ¶ 22,491, aff’d on motion for recon., 90-2 BCA ¶ 22,728.
Since we have found that Appellant’s failure to comply with the contract’s Service Contract Act requirements supports the termination, we need not address Respondent’s argument that safety violations committed by Appellant justified the default termination of the contract.
Reprocurement
For Respondent to recover its excess costs associated with its reprocurement efforts, it must demonstrate that the services it reprocured were the same as, or similar to, those provided under the terminated contract. Respondent must also demonstrate that it acted reasonably to minimize the excess costs. Andrew M. Johnson, PSBCA Nos. 5210, 5242, 07-1 BCA ¶ 33,464; Christine Bell, PSBCA No. 5037, 04-2 BCA ¶ 32,756.
Appellant has neither disputed that the reprocured services were the same as those required under the terminated contract nor has it alleged that Respondent failed to mitigate its excess reprocurement costs. Moreover, Respondent has demonstrated that it reprocured the same services that Appellant provided under the terminated contract (Finding 15). Respondent also took reasonable steps in selecting the replacement contractor and minimizing the assessment of excess costs by limiting the time for which costs were assessed to 91 days. Also, Respondent claims excess costs based only on the long-term replacement contract as opposed to the higher-priced, short-term emergency contract. Finally, the administrative actions Respondent took in awarding the replacement contract and the resulting administrative costs were reasonable (Findings 15, 16).
Accordingly, these appeals are denied, and Respondent is entitled to recover from Appellant its excess reprocurement costs in the amount of $14,623.74.
William A. Campbell
Administrative Judge
Chairman
I concur: I dissent: (See Opinion Below)
David I. Brochstein Norman D. Menegat
Adminstrative Judge Administrative Judge
Vice Chairman Board Member
Dissenting Opinion
I disagree with the majority decision. Appellant’s violation of the labor provisions of its contract may justify Respondent’s termination of the contract for default (Finding 6), but jurisdiction to determine whether such a violation occurred rests with Department of Labor, not with the Board (Finding 7). Herman B. Taylor Constr. Co. v. Barram, 203 F.3d 808, 811 (Fed. Cir. 2000); Overflo Public Warehouse, Inc., PSBCA Nos. 4531, 4550, 4649, 04-1 BCA ¶ 32,488 at 160,711. The record of this appeal does not demonstrate that the Department of Labor has made a determination that Appellant violated the contract’s labor provisions.
A Department of Labor investigation of Appellant disclosed evidence of a Service Contract Act violation (Finding 18). Based on that investigation, the Philadelphia Regional Solicitor for the Department instituted an enforcement action by issuing a complaint against Appellant setting forth the alleged grounds for relief and requesting recovery of $47,339.39 on behalf of underpaid employees (Finding 19). The SCA complaint reflects the Regional Solicitor’s—the prosecutor in the matter—view that Appellant’s conduct violated the SCA. Although the record does not reveal all of the procedural steps in Appellant’s case with the Department, the DOL rules contemplate that after the Regional Solicitor files a complaint, the Department’s Chief Administrative Law Judge will set a hearing date (29 C.F.R. §6.15). The employer is entitled to file an answer with the Chief Administrative Law Judge, and failure to file an answer may result in entry of a default judgment against the employer (29 C.F.R. §6.16).
The Regional Solicitor, however, did not pursue the charges in the complaint to a final determination by the Department that Appellant violated the SCA. As permitted by the applicable DOL regulations, in lieu of proceeding to a hearing before the Administrative Law Judge, Appellant and the Regional Solicitor agreed to entry of consent findings and an order disposing of the proceedings (Findings 20, 21; 29 C.F.R. §6.18). Through the agreement, the Department recovered the amount of funds Respondent had withheld, $12,583.91, which was about one-fourth of the $47,339.39 the Regional Solicitor sought to recover for the employees in the complaint (Findings 18, 19, 21 ¶9, 23). It also obtained consent to place Appellant on the debarred list for three years (Finding 21 ¶10).
Appellant did not specifically admit violating the SCA but agreed that Respondent could release to DOL the withheld funds. Appellant was relieved of the remainder of the monetary claim stated in the complaint (Findings 21 ¶7, 21 ¶9). Both parties waived their right to further proceedings before the Administrative Law Judge and any right to challenge or appeal the consent findings and order (Findings 21 ¶15, 21 ¶16). The Department of Labor obtained relief it considered adequate and had no need to seek a formal determination, after a hearing or after a default, that Appellant violated the Service Contract Act provisions of the contract.
The Court of Appeals for the Federal Circuit, in Herman B. Taylor Constr. Co. v. Barram, 203 F.3d 808 (Fed. Cir. 2000), confirmed that the Board does not have jurisdiction to determine whether Appellant violated the labor provisions of the contract; the Board must accept the Department of Labor’s adjudication of such violation. Id. at 811. The Court examined the Labor Department regulations and concluded that they
"show that a Labor Department finding of a violation of a contract’s labor provisions requires a final decision by the administrative law judge after a hearing or, if the contractor accepts the investigative findings and does not request a hearing when those findings thereby become final."
Id. at 814. Neither of those conditions exists in this case. The Court in Taylor found that a settlement between the Department of Labor and a government contractor, which resulted in consent findings and an order much like those in this appeal, was not a DOL determination, i.e., an adjudication, on which termination for default of the contractor could be based.
In this case, the Chief Administrative Law Judge’s Order approving the consent findings and order (Findings 20, 22) notes that DOL alleges violations of the SCA, and states that the alleged infractions violated the SCA. The Chief Administrative Law Judge did not make an independent determination of the accuracy of the Regional Solicitor’s allegations in the complaint, and found only that the consent findings and order "fairly and adequately resolve all pending issues pertaining to this matter." (Finding 22).
The majority closely parses the language of the Chief Administrative Law Judge’s Order in an attempt to distinguish this appeal from the circumstances considered in Taylor. As discussed above, the author of this Opinion does not share the majority’s reading of the Order to signify a determination by the Department of Labor that Appellant violated the contract’s SCA provisions. Moreover, under the facts of this appeal, reliance on a dissection of the language used in the Order is not necessary. What is dispositive is that this appeal and Taylor share the material fact that the Department of Labor process ended in a compromise between Appellant and the Department. "Each party surrendered the right to a determination of the merit of the claim of violation and at the same time avoided the possibility of an adverse ruling." Id.
"Since a Labor Department determination that a contractor has violated the labor provisions may result in a default termination of the contract, it is essential that before the Board approves a contracting officer’s default termination on that ground, it is clear and beyond question that the Labor Department in fact has found under its established procedures that the contractor has committed such a violation."
Id. at 811-812. The Board should not approve the default termination of Appellant’s contract based on violation of the contract’s SCA provisions because it is not "clear and beyond question" that the Labor Department has made a determination that Appellant committed such a violation. The Board should conclude, as did the Court in Taylor, that the Department of Labor process at issue did not result in a determination of violations that would support Respondent’s default termination of the contract. [3]
Under this analysis, it is necessary to determine whether the safety violations cited by the contracting officer as the basis for the termination were sufficient justification for his action. While safety violations may justify termination of a contract, see The Four Roses Painting Co., PSBCA No. 1013, 83-1 BCA ¶ 16,541, Appellant’s contract’s Termination for Default clause required that before terminating based on violation of other provisions of the contract, such as the safety provisions, the contracting officer give Appellant notice of its contract failures and at least three days to cure the contract violations (Finding 2). The December 16, 2004 oral reprimand from the Transportation Manager (Finding 10), who was not the contracting officer, was not sufficient to meet this requirement, and the termination for default on this ground was not justified. See Bailey Specialized Buildings, Inc. v. United States, 186 Ct. Cl. 71, 404 F.2d 355, 362-363 (1968); Jack Yanks d/b/a Jack Yanks Constr. Co., PSBCA Nos. 163, 164, 76-1 BCA ¶ 11,782 at 56,250; The Swanson Group, Inc., ASBCA No. 44664, 98-2 BCA ¶ 29,896 at 147,993. Moreover, the December 15, 2004 incident for which Appellant was reprimanded (Finding 10) occurred the same day the Transportation Manager issued the yard policy (Finding 9), leaving the March 23, 2005 incident (Finding 11) as the only noted safety deficiency attributable to Appellant after it received notice of the yard policy. Respondent did not show that this was a circumstance sufficient to justify the termination. [4]
For the reasons discussed above, I would sustain the appeals, converting the termination to one for Respondent’s convenience (Finding 4) and denying Respondent’s recovery of its claimed reprocurement costs.
[1] Respondent’s reprocurement worksheet (AF 13) lists the replacement contract rate as $276,072.35 while the contracting officer in his declaration (Harris Decl., ¶ 19) lists the replacement contract rate as $276,082.35. As the rate of $276,072.35 is the rate used in the reprocurement cost worksheet computations to determine the reprocurement amount which was contained in the contracting officer’s final decision assessing reprocurement costs, we accept that rate.
[2] The Davis-Bacon Act establishes minimum wage and benefits requirements for federal construction contracts in a manner very similar to the way the Service Contract Act establishes wage and benefit requirements for federal service contracts such as Appellant’s. As with the Davis-Bacon Act, the Secretary of Labor has authority to promulgate regulations to enforce the SCA. See Fulton Hauling Corp., PSBCA No. 3049, 91-3 BCA ¶ 24,344. The CWHSA governs the payment of overtime pay under service and construction contracts (See 40 U.S.C. § 3701, et seq.).
[3] As the majority points out, the parties in Taylor had included disclaimers in their agreed consent findings and order in which the contractor stated that it denied the violations. Similar language is not included in the consent findings in this appeal, but, as discussed above, there is no admission of violation by Appellant in the consent order and findings. Given the absence in the consent findings and order of a determination or admission that Appellant violated the contract’s SCA provisions, the statement that the order "shall have the same force and effect as an order made after a full hearing" (Finding 21 ¶11) does not convert the order to a Department of Labor determination of violation. See Herman B. Taylor Constr. Co. v. Barram, 203 F.3d 808, 814 (Fed. Cir. 2000).
[4] Respondent does not argue that the October 29, 2004 incident of mail containers falling out of the truck was sufficient, in and of itself, to justify the termination (Findings 5c, 8). See Linda F. Willett, PSBCA No. 4379, 00-2 BCA ¶ 31,035, recon. denied, 01-1 BCA ¶ 31,196. Rather, Respondent argues that this incident was an early indication that the safety of Appellant’s operation had begun to decline and that it is this slide, culminating in the March 23, 2005 incident (Findings 8-11), that warranted termination. As discussed above, the author of this Opinion does not find the history of safety violations sufficient to justify the termination of Appellant’s contract for default.