DISMISSED WITHOUT PREJUDICE: October 18, 1993 GSBCA 12355 TEK PRO'S, Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. James E. Hampshire, President of TEK PRO'S, Lawton, OK, appearing for Appellant. Jerry Ann Foster, Office of Regional Counsel, General Services Administration, Fort Worth, TX, counsel for Respondent. GOODMAN, Board Judge. On March 31, 1993, appellant, TEK PRO'S, filed this appeal of a contracting officer's decision dated December 29, 1992. The decision denied in part appellant's claim for a price adjustment to its contract as the result of increased minimum wages contained in a new Department of Labor wage determination applicable to appellant's contract with respondent. According to a price adjustment clause in the contract, appellant alleged it was entitled to an increase in the contract price. Appellant elected to have its case resolved under the Board's accelerated procedure. Rule 14.[foot #] 1 The claim involved appellant's designation of an employee as both a motor vehicle mechanic and a working supervisor. Appellant asserts that for purposes of calculating the price adjustment, the employee should be classified as a motor vehicle mechanic, and only that portion of his wages deemed by appellant as payment for mechanic's wages should be considered in the calculation of the price adjustment. Respondent asserts that the employee's total compensation, and not just that portion of wages designated by appellant as mechanic's wages, should be considered in calculating the price adjustment. Thus, the contracting officer granted a price increase, but not in the amount requested ----------- FOOTNOTE BEGINS --------- [foot #] 1 48 CFR 6101.14 (1992). ----------- FOOTNOTE ENDS ----------- by appellant. Appellant sought its total claim on this issue in its appeal to this Board. During a conference on September 28, 1993, the Board informed the parties that it believed a resolution was necessary as to the proper classification of the individual employee in question before a price adjustment could be determined, as appellant was asserting a dual function for the individual. The issue of the proper classification of the individual is a dispute concerning labor standard requirements. Pursuant to Federal Acquisition Regulation (FAR) 52.222-41(t), set forth in full at 48-51 of the contract, all disputes concerning labor standard requirements are to be resolved by procedures established and conducted by the Department of Labor, and not pursuant to the Disputes clause of the contract. Thus, the Board, sua sponte, raised the issue of its possible lack of jurisdiction to resolve a preliminary issue necessary for determination of the price adjustment. See, e.g., Emerald Maintenance, Inc. v. United States, 925 F.2d 1425 (Fed. Cir. 1991); JL Associates, Inc. v. General Services Administration, GSBCA 11922, 93-3 BCA 25,939. During a second conference on October 6, 1993, counsel for respondent stated its position that after reviewing the situation further, respondent had determined that the contracting officer's decision of December 29, 1992, incorrectly stated appeal rights to this Board under the Contract Disputes Act, and that the proper forum for resolution of the dispute as to the classification of appellant's employee was the Department of Labor. Accordingly, respondent stated its intent to reissue the contracting officer's decision with the appropriate appeal rights and to file a motion to dismiss the instant appeal for lack of jurisdiction. Mr. Hampshire stated on behalf of appellant that he would not object to respondent's motion to dismiss the appeal for lack of jurisdiction. By letter dated October 6, 1993, to appellant, the contracting officer stated that the previous decision of December 29, 1992, should have included appeal rights to the U.S. Department of Labor rather than to this Board. On October 7, 1993, respondent filed a motion to dismiss the instant appeal for lack of jurisdiction, on the grounds stated above, to which appellant had previously stated it would not object. Accordingly, respondent's motion is granted. The appeal is DISMISSED WITHOUT PREJUDICE. ______________________ ALLAN H. GOODMAN Board Judge