CHARLES F. LETTOW, Judge.
Plaintiffs Seh Ahn Lee, Irina Ryan, Ahmad Nariman, and Mark Peach claim they are entitled to civilian pay and damages for breach of contract, alleging that the Broadcasting Board of Governors ("Broadcasting Board" or the "Board"), an independent agency of the United States (the "government"), denied plaintiffs full compensation and benefits for their work as contractors for the agency. Plaintiffs assert that although they were hired by the Broadcasting Board as purchase order vendors (or nonpersonal service contractors), they were in reality acting in the capacity of personal service contractors. Plaintiffs assert that they should be awarded monetary relief under the Back Pay Act, 5 U.S.C. § 5596, for certain wages, benefits, and tax payments to which they would have been entitled if their contracts had been properly classified as personal service contracts. Alternatively, plaintiffs claim they should receive monetary damages as a result of the government's breach of an implied contract for compensation commensurate with their services in the capacity of personal service contractors. Plaintiffs have included class allegations in their complaint and amended complaint, contending that "approximately 660 persons [at the Board] have been providing personal services by means other than by federal appointment at any given time, including at present." Am. Compl. ¶ 102, ECF No. 7. In that connection, plaintiffs have filed a motion to certify a class of persons who are said to have worked in the capacity of personal service contractors. Pls.' Mot. to Certify Class, ECF No. 17.
Pending before the court is the government's motion to dismiss plaintiffs' complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal Claims ("RCFC"). Regarding plaintiffs' civilian pay claim, the government asserts that plaintiffs have failed to state a valid claim for relief because the Back Pay Act only applies to government "employees" as defined by 5 U.S.C. § 2105(a), and plaintiffs have not alleged they fall within this defined group. Def.'s Mot. to Dismiss ("Def.'s Mot.") at 7-8, ECF No. 12. Regarding plaintiffs' breach of contract claim, the government argues that this court lacks subject matter jurisdiction because, under the Contract Disputes Act ("CDA") of 1978, recodified at 41 U.S.C. §§ 7101-7109, plaintiffs must first submit a claim to the appropriate contracting officer, and they have not done so. Def.'s Mot. at 5-7.
The motions have been briefed and were addressed at a hearing on August 16, 2016. For the reasons discussed, the government's motion to dismiss plaintiffs' complaint is GRANTED, and plaintiffs' motion to certify a class is DENIED as moot.
The Broadcasting Board was established in 1994 to streamline management of the government's international broadcasting activities through organizations such as Voice of America, Radio Free Europe, and Radio Martí. See United States International Broadcasting Act of 1994, Pub. L. No. 103-236, §§ 301-15, 108 Stat. 382 (1994) (codified at 22 U.S.C. §§ 6201-16); see also Am. Compl. ¶ 21; 5 U.S.C. § 104(1). The Board initially operated as part of the United States Information Agency, but it became an independent government agency in 1999 under the general oversight of the Secretary of State, who serves as one of the nine voting members of the Board. See Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Pub. L. No. 105-277, § 1323, 112 Stat. 2681 (1998).
Plaintiffs are four individuals who provided services to various elements of Voice of America — an organization within the Broadcasting Board — either directly through individual purchase order vendor contracts or as independent subcontractors to staffing agencies under prime contracts with the Board. Am. Compl. ¶¶ 22-25. Mr. Lee is a naturalized U.S. citizen from South Korea who has worked as a contractor for nearly 13 years, including under a subcontract with Technologist, Inc. Am. Compl. ¶ 22. Ms. Ryan is a naturalized U.S. citizen from Russia who has worked as a contractor for approximately nine years, including through a subcontract with Computer Technology Services, Inc. Am. Compl. ¶ 23. Mr. Nariman is a naturalized U.S. citizen from Iran who formerly worked as a contractor for approximately six years from 2007 to 2013. Am. Compl. ¶ 24. Mr. Peach is a U.S. citizen who has worked as a contractor for approximately eight years. Am. Compl. ¶ 25. As noted earlier, plaintiffs allege that approximately 660 potential class members served under similar contracts with the Board. Am. Compl. ¶ 9.
In 2013, the Department of State's Office of Inspector General ("OIG") conducted an audit of the Board's Office of Contracts "to evaluate whether [the Board] had adequate acquisition policies and procedures and to assess the efficacy of those policies and procedures." Pls.' Opp'n to Def.'s Mot. to Dismiss ("Pls.' Opp'n") Ex. A, at 1 (Audit of the Broadcasting Board of Governors Administration and Oversight of Acquisition Functions (June 2014) ("OIG Report")), ECF No. 15-2. As a result of its audit, OIG concluded that, among other things, the "[Board] awarded contracts that were personal in nature, resulting in [the Board] exceeding its statutory authority to award personal service[] contracts." Id. In its analysis, OIG used the definition of a personal service contract in 48 C.F.R. (Federal Acquisition Regulations, or "FAR") § 37.104(a), which states that such a contract "is characterized by the employer-employee relationship it creates between the [g]overnment and the contractor's personnel." Id. at 10. OIG looked to the following six factors outlined in FAR § 37.104(d) to assess whether certain Broadcasting Board contracts were personal service contracts:
Id. at 10-11 (quoting FAR § 37.104(d)) (correcting typographical errors in the quotations as stated in the OIG report).
OIG noted that the FAR generally prohibits personal service contracts "without explicit statutory authority." OIG Report at 10 (citing FAR § 37.104(b)).
The Broadcasting Board disagreed with OIG's determination that it had exceeded its statutory authority, asserting that the contracts in question were not personal service contracts but rather "purchase order vendor" contracts, which are not subject to the same limitations. OIG Report at 16-17; see also id. at 94-96 (Letter from Richard M. Lobo, Director, International Broadcasting Bureau, to Steve A. Linick, Inspector General, Department of State (Nov. 22, 2013)). Nevertheless, the Board indicated that it would move away from entering into purchase order vendor contracts and instead use staffing agencies that would subcontract for the requisite services to alleviate the concerns raised in the OIG report. OIG Report at 17. The Board also stated that it would "reissue clear guidance to each manager about the distinction between independent contractors and personal service[] contractors." Id.
Plaintiffs filed their original complaint on December 21, 2015, followed by an amended complaint on March 7, 2016. Specifically, they allege that their contracts with the Broadcasting Board, as well as those of other potential class members, fall within the type of contracts that, according to the OIG's analysis, should have been classified as personal service contracts. Am. Compl. ¶¶ 73-78. Accordingly, plaintiffs allege that they are entitled to additional compensation and benefits — including rates of pay commensurate with the General Schedule rates applicable to federal employees, paid leave and holidays, retirement and insurance benefits, and certain tax-related benefits — that are provided to personal service contractors under internal Department of State rules and the rules of similar agencies. Am. Compl. ¶¶ 85-93. Plaintiffs advance two alternative claims that they are entitled to monetary relief: (1) that they are entitled to back pay and other monetary relief under the Back Pay Act and related statutes and regulations, Am. Compl. ¶¶ 94-98, 108-15; and (2) that they are entitled to monetary damages because the government has breached implied contracts with plaintiffs to compensate them in the same manner as contractors performing under actual personal service contracts, Am. Compl. ¶¶ 116-26.
In its motion to dismiss, the government argues that Count One of plaintiffs' complaint should be dismissed for failure to state a claim upon which relief can be granted under RCFC 12(b)(6) because they have not alleged that they are or were "employees" of the federal government within the meaning of the Back Pay Act, 5 U.S.C. § 5596. Def.'s Mot. at 7-8. The Back Pay Act authorizes the payment of previously earned wages to "[a]n employee of an agency who, on the basis of a timely appeal or an administrative determination . . . is found by an appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee." 5 U.S.C. § 5596(b)(1). For the purposes of Title 5 of the United States Code, an "employee" is defined as "an individual who is . . . appointed in the civil service" by a federal employee acting in an official capacity. 5 U.S.C. § 2105(a)(1). The government argues that although plaintiffs claim they were providing "personal services" to the government "in the manner of federal employees," e.g., Am. Compl. ¶ 4, they do not allege they were ever actually appointed to the civil service, Def.'s Mot. at 7-8. Therefore, the government asserts that plaintiffs have failed to state a cognizable claim under the provisions of the Back Pay Act. Id.
The court agrees that Count One of plaintiffs' amended complaint must be dismissed, but for a more fundamental reason. Before the court can consider whether plaintiffs have stated a claim upon which relief can be granted under RCFC 12(b)(6), the court "must first consider whether jurisdiction is proper." Herrmann v. United States, 124 Fed. Cl. 56, 67 n.18 (2015) (citing Greenlee Cnty. v. United States, 487 F.3d 871, 876 (Fed. Cir. 2007); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988)); see also Mendoza v. United States, 87 Fed. Cl. 331, 335 (2009) ("Only after completing this initial jurisdictional inquiry will the court address the specific question of whether the facts in the plaintiffs' case [state a claim upon which relief can be granted].").
In connection with their Back Pay Act claim, plaintiffs allege that the Broadcasting Board violated numerous statutes, regulations, and internal agency rules pertaining to compensation for federal employees and contractors. Am. Compl. ¶¶ 85-93, 115 (citing various sections of Titles 5, 21, and 29 of the United States Code, which pertain to employee compensation and tax contributions, as well as sections of Titles 5 and 48 of the Code of Federal Regulations, which apply to federal employees and contractors, respectively). In this connection, plaintiffs must make "a nonfrivolous assertion that [they are] within the class of plaintiffs entitled to recover under the money-mandating source." Mendoza, 87 Fed. Cl. at 335 (quoting Jan's Helicopter Servs., Inc. v. Federal Aviation Admin., 525 F.3d 1299, 1307 (Fed. Cir. 2008)). Because plaintiffs have invoked the Back Pay Act as the money-mandating statute, they must accordingly make a non-frivolous assertion that they fall within the class of individuals covered by the statute — in other words, "employees" defined under 5 U.S.C. § 2105(a) as individuals "appointed in the civil service." See Greenlee Cnty., 487 F.3d at 877 (finding the Court of Federal Claims had subject matter jurisdiction because the plaintiff had established it was a "unit of local government" within the meaning of the money-mandating statute pertinent in that case, i.e., the Payment in Lieu of Taxes Act). Here, the plaintiffs allege that they were "never" appointed, Am. Compl. ¶¶ 10, 102, but that they "should have been," Am. Comp. ¶ 14. Because the plaintiffs acknowledge that they were not appointed to the civil service, they cannot invoke jurisdiction under the Back Pay Act. See Todd, 386 F.3d at 1095.
The court is not persuaded by plaintiffs' citation to FAR § 37.104(a), which states that a "personal service[] contract is characterized by the employer-employee relationship it creates between the [g]overnment and the contractor's personnel," Am. Compl. ¶ 33, nor by their related assertion that they "were providing personal services in the manner of federal employees," Am. Compl. ¶ 25.
Even if these allegations of intentional error on the government's part are taken as true, plaintiffs have cited no authority to establish that "fraud" in a contract, or in the inducement to a contract, would serve to convert a contract employee to a civil service appointee for the purposes of claiming entitlement to monetary relief under the Back Pay Act. See Costner v. United States, 665 F.2d 1016, 1020 (Ct. Cl. 1981) (finding that even when a particular type of contract with the government was "not legally authorized," "there is no implication that the proper remedy is retroactively to make [the contractors] employees" for the purposes of a claim under the Back Pay Act); see also id. at 1021 (declining to apply common law to determine whether an employer-employee relationship existed, observing that the requirements of the Back Pay Act are more stringent).
Even if plaintiffs' Count One claim were to be interpreted as an implied assertion that they were "employees" within the definition of the Back Pay Act, that claim would have to be dismissed for failure to state a claim under RCFC 12(b)(6). Under the standards for a motion under RCFC 12(b)(6), the court must examine whether the complaint "contain[s] sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). As applicable here, "[t]he question of whether a government employee is serving by contract or appointment depends upon the `relevant statutory language and regulations and the language of the hiring documents.'" Calvin v. United States, 63 Fed. Cl. 468, 472 (2005) (quoting American Fed'n of Gov't Employees Local 1 v. Stone, 342 F.Supp.2d 619, 625 (N.D. Tex. 2004)). Plaintiffs have alleged that they were all serving under express contracts during the relevant time period, either directly with the Broadcasting Board or as subcontractors to a staffing agency holding a prime contract with the Board. Am. Compl. ¶¶ 22-25. As this court previously stated in Calvin, "[w]hile the Supreme Court has not explicitly held that employment by appointment and by contract are mutually exclusive, its reasoning implies such a principle, and courts have interpreted [Army & Air Force Exchange Serv. v. Sheehan, 456 U.S. 728 (1982),] and like precedents to require mutual exclusivity." 63 Fed. Cl. at 472 (citing Collier v. United States, 56 Fed. Cl. 354, 356-57 (2003)). Plaintiffs have provided no reason to disturb this principle that individuals serving under contract with the government cannot simultaneously be serving as appointees in the civil service.
The government has moved to dismiss Count Two of plaintiffs' complaint for lack of subject matter jurisdiction. Def.'s Mot. at 5-7. The government asserts that plaintiffs' breach of contract claim is barred under the provisions of the CDA, specifically 41 U.S.C. § 7103(a), because it was not first submitted to and denied by a contracting officer. Id. The CDA "applies to any express or implied contract . . . made by an executive agency for . . . the procurement of services." 41 U.S.C. § 7102(a)(2). Under the Act's provisions, "[e]ach claim by a contractor against the [f]ederal [g]overnment relating to a contract shall be submitted to the contracting officer for a decision." 41 U.S.C. § 7103(a)(1). After such a claim has been made, "a contractor may bring an action directly on the claim in the United States Court of Federal Claims." 41 U.S.C. § 7104(b)(1). The government asserts that plaintiffs did not submit their breach of contract claim to a contracting officer, and this court consequently lacks jurisdiction to entertain the claim. Def.'s Mot. at 5-6 (citing Advanced Materials, Inc. v. United States, 46 Fed. Cl. 697, 701 (2000); Witherington Constr. Corp. v. United States, 45 Fed. Cl. 208, 211 (1999); Cincinnati Elecs. Corp. v. United States, 32 Fed. Cl. 496, 505 (1994)).
As with Count One, the court agrees that Count Two must be dismissed for lack of subject matter jurisdiction, but for a different reason than that asserted by the government.
Plaintiffs have failed to make a non-frivolous claim of an implied-in-fact contract with the government above and beyond the provisions of their express contracts. "The existence of an express contract precludes the existence of an implied contract dealing with the same subject, unless the implied contract is entirely unrelated to the express contract." Atlas Corp. v. United States, 895 F.2d 745, 754-56 (Fed. Cir. 1990) (finding that plaintiffs were not entitled to additional payments to cover the costs of tailings stabilization because those costs were not "`entirely unrelated' to the costs included in the contract prices," and affirming dismissal for lack of jurisdiction); see also Algonac Mfg. Co. v. United States, 428 F.2d 1241, 1255 (Ct. Cl. 1970) ("[A]s a general rule there can be no implied contract where there is an express contract between the parties covering the same subject."); Cummings v. United States, 17 Cl. Ct. 475, 480 n.8 (1989) (quoting Algonac Mfg. and disposing of plaintiff's claim of an implied contract without further comment because plaintiff had already alleged a written contract on the same subject); Trauma Serv. Grp., Ltd. v. United States, 33 Fed. Cl. 426, 432 (1995) (also citing Algonac Mfg.), aff'd, 104 F.3d 1321 (Fed. Cir. 1997). Here, plaintiffs do not allege that their entitlement to additional compensation is based on work done outside the scope of their express contracts. Rather, they argue that their express contracts should have been styled as personal service contracts, in which case plaintiffs would have been entitled to compensation in the same manner as federal employees. Am. Compl. ¶¶ 118-24. Plaintiffs do not allege that the government actually offered to provide them additional compensation, or that they were pressed into providing services beyond what was contemplated in their express contracts, thus entitling them to additional compensation. Such allegations might form the basis for an implied contract "entirely unrelated" to the terms of the express contracts already held by the plaintiffs. Atlas Corp., 895 F.2d at 754. Absent these or similar allegations, however, the court lacks jurisdiction to consider a claim that an implied contract has been breached when there is no basis on which such an implied contract could be established.
Alternatively, plaintiffs argue that under the theory of quantum meruit ("as much as he merited"), the government received the benefit of "personal services" performed by the plaintiffs without providing the compensation that would typically be provided to personal services contractors. Am. Compl. ¶ 126; see also United States v. Amdahl Corp., 786 F.2d 387, 393 n.6 (Fed. Cir. 1986) (defining "quantum meruit"). This contention is premised on accepting the postulate that plaintiffs' individual contracts were void because the Broadcasting Board entered the contracts in contravention of FAR § 37.104. The court also lacks jurisdiction to consider this argument. "A recovery in quantum meruit is based on an implied in-law contract. That is, a contract in which there is no actual agreement between the parties, but the law imposes a duty in order to prevent injustice." International Data Prods. Corp. v. United States, 492 F.3d 1317, 1325 (Fed. Cir. 2007). The Court of Federal Claims generally does not have jurisdiction over quantum meruit or implied-in-law contract claims. Id.; see also Trauma Serv. Grp., 33 Fed. Cl. at 432 ("Claims for unjust enrichment on quantum meruit damages state claims for breaches of contracts implied in law, over which the court has no jurisdiction." (citing United States v. Mitchell, 463 U.S. 206, 218 (1983); United States v. Minnesota Mutual Co. Inc., 271 U.S. 212, 217 (1926); Atlas Corp., 895 F.2d at 755)).
Even if this court had jurisdiction over plaintiffs' breach of contract claim in Count Two, this claim would have to be dismissed under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. As discussed supra, a motion under RCFC 12(b)(6) requires the court to examine whether there is sufficient factual matter in the complaint to establish a "claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. The government's motion to dismiss plaintiffs' complaint cites both RCFC 12(b)(1) and 12(b)(6). Def.'s Mot. at 1. Although the government focused its breach of contract arguments on jurisdictional issues, the court may nonetheless also consider whether, under the standards applicable to RCFC 12(b)(6), plaintiffs' complaint states a plausible claim to relief.
Although plaintiffs frame their claim in Count Two as a breach of an implied contract, it could alternatively be viewed as an allegation that certain terms involving compensation were omitted from their express contracts with the government. In that case, plaintiffs would be asking the court to insert implied terms to fill the gap left by this omission. Even under this lenient reading of the complaint, plaintiffs have not plausibly alleged their express contracts with the government omitted any essential terms. "It is not the habit of courts to resolve disputes over omission concerning [contract] matters by resorting to implied terms." E. Allan Farnsworth, Disputes Over Omission in Contracts, 68 Colum. L. Rev. 860, 862 (1968) (advocating resolution of omissions through inferences from the actual contract terms, or "basic principles of fairness or justice," id. at 877, rather than by inserting implied terms based on the parties' presumed intentions). An omission, or a "casus omissus" ("case which is not provided for"), generally occurs where there is an event not accounted for in the express language of the contract and not anticipated by the parties. Id. at 862 n.11, 873-76 (quoting 1 J. Bouvier, Law Dictionary 431 (8th ed. 1914)); see also Restatement (Second) Contracts § 204 cmt. b (1981) ("How omission occurs. The parties to an agreement may entirely fail to foresee the situation which later arises and gives rise to a dispute; they then have no expectations with respect to that situation."). If an omitted term is "essential," i.e., it is necessary to the determination of the parties' rights under the contract, a court may fill this gap with "a term [that] is reasonable in the circumstances." Restatement (Second) Contracts § 204; see also Pacific Gas & Elec. Co. v. United States, 536 F.3d 1282, 1289 (Fed. Cir. 2008) (stating that the court can supply a minimum acceptance rate in a contract for storage of spent nuclear fuel because without that term, "the contract would be meaningless and nonsensical"); Howell v. United States, 51 Fed. Cl. 516, 520-21 (2002) (court may supply a minimum quantity term to an indefinite-quantity contract when the parties failed to include that term).
Here, plaintiffs have not demonstrated that additional compensation terms were "essential" to their contracts.
For the reasons stated, the government's motion to dismiss plaintiffs' complaint under RCFC 12(b)(1) and 12(b)(6) is GRANTED.
No costs.
It is so
FAR § 37.104(a), (b).
The Almutairi case does not address the question of whether alleged "fraudulent labeling of contracts" gives plaintiffs "statutory rights" to recovery under the Back Pay Act. That case involved a factual dispute over whether an individual (Mr. Almutairi) had applied for a civil service position or a purchase order vendor contract. Almutairi, 928 F. Supp. 2d at 226. After addressing this dispute, the district court examined whether Mr. Almutairi could still sue the government for discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), codified at 42 U.S.C. § 2000e et seq., and the Rehabilitation Act of 1973, codified at 29 U.S.C. § 701 et seq., even if he had only applied for a purchase order vendor contract. Id. at 229. The district court noted that both Title VII and the Rehabilitation Act allow discrimination suits by "employees or applicants for employment." Id. (citing 42 U.S.C. § 2000e-16 and 29 U.S.C. § 794a(a)(1)). Unlike the Back Pay Act, however, the remedies provided under Title VII and the Rehabilitation Act are not limited to civil service appointees; they apply to all employees and applicants for employment. See, e.g., 42 U.S.C. § 2000e(f) (Title VII definition of an "employee" as "an individual employed by an employer"). Therefore, the district court's discussion of whether Mr. Almutairi qualified as an "employee" (or, more precisely, an "applicant for employment") for the purposes of his discrimination claim has no bearing on this court's determination of whether a similar type of contractor would qualify as a civil service appointee under the Back Pay Act.
The internal Board memorandum is similarly inapposite. The cited portion of the memorandum discusses a 2010 IRS tax audit in which the IRS determined that the Board should have treated purchase order vendor contractors "as employees for tax reporting purposes, including by withholding income and Social Security taxes." Board Memorandum at 9. The Board cited the potential tax liability as a reason for using "external service provider[s]," i.e., staffing agencies, to obtain purchase order vendor contractors instead of contracting with them directly. Id. at 9-10. The IRS's determination of whether purchase order vendor contractors should be treated as employees for tax purposes has little bearing on whether plaintiffs can be "employees" within the meaning of the Back Pay Act.
Second, the "claim" at issue in Count Two of plaintiffs' complaint does not appear to be the type of claim contemplated by the CDA in terms of its requirements for submission to a contracting officer. The CDA does not separately define a "claim," but the FAR defines a claim as a "written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to the contract." 48 C.F.R. § 2.101. Again, plaintiffs are not seeking monetary relief arising from their express contracts with the Broadcasting Board, nor are they asking for "adjustment or interpretation" of those contracts' terms. Rather, they are alleging that the government has breached a different set of compensation terms derived from implied contracts. As evidenced by plaintiffs' complaint, these are not claims for a "sum certain," but rather a yet-to-be-determined amount roughly equivalent to the compensation that would have been given to a federal employee doing the same type of work during the same time period. See Am. Compl. ¶¶ 122-23. Plaintiffs further complicate the issue by alleging that the implied contracts arose as a result of the government's "fraud" or misrepresentation in mislabeling the express contracts as ones for "nonpersonal services." Pls.' Opp'n at 11-17. Without addressing whether the type of fraud alleged by plaintiffs constitutes an exception to the CDA under 41 U.S.C. § 7103(c)(1), the court finds that it would likely not "do justice to the realities of the situation" to require plaintiffs to submit the type of claim alleged in Count Two to a contracting officer before bringing a suit in this court. Institut Pasteur, 814 F.2d at 627.
Am. Compl. ¶ 86 (quoting FAR § 52-232-3 in part). Plaintiffs argue that the reference to "rates prescribed" in this clause refers to rates prescribed for federal employees under Title 5 of the Code of Federal Regulations, as well as by internal agency rules. Am. Compl. ¶¶ 87-91; see also Hr'g Tr. 35:16 to 37:11. Plaintiffs concede that the Broadcasting Board has no such rules prescribing certain rates of pay or benefits for personal service contracts, Am. Compl. ¶ 87-88, but nevertheless assert that the wages and benefits prescribed in the rules of the Board's "sister and parent agencies," namely, the United States Agency for International Development and the Department of State, should be substituted in the absence of such rules for the Board, Am. Compl. ¶¶ 89-91.
The contract clause contained in FAR § 52.232-3 falls within a group of sections (FAR §§ 52.232-1 to -10) that pertain to "invoice payments" made under fixed-price contracts. See 2 Karen L. Manos, Government Contract Costs & Pricing § 85:8 (June 2016 ed.). Similar provisions for payments under fixed-price contracts generally (FAR § 52.232-1) and payments under fixed-price research and development contracts (FAR § 52-232-2) substitute the phrase "rates prescribed" for "the prices stipulated in [the] contract." The use of "rates prescribed" in FAR § 52.232-3 is preceded by the phrase "as set forth in the Schedule of this contract," which indicates that the clause refers to the rates prescribed in the contract's schedule, as well as to the "services performed" under that schedule. Accordingly, addition of this clause to plaintiffs' express contracts with the Broadcasting Board would not entitle plaintiffs to any wages or benefits beyond those already specified in the contract. In this same vein, FAR § 52.232-3 refers to entitlement to "per diem" rates related to travel, but plaintiffs have not alleged that their express contracts omitted such entitlements. Plaintiffs list a total of 22 types of pay and benefits they believe they were denied under their express contracts, but none of them involves reimbursement for travel-related expenses. Am. Compl. ¶¶ 85, 115, 122.
At the hearing, plaintiffs also elaborated the argument that certain statutes and regulations other than the FAR compelled the inclusion of additional terms related to compensation and benefits in plaintiffs' express contracts with the Broadcasting Board. Hr'g Tr. 35:13 to 37:11. Although plaintiffs did not enumerate these provisions at the hearing, they referred to a list in their amended complaint, Am. Compl. ¶¶ 85, 115, which included certain statutes and regulations to be used as "proxies for determining reasonable compensation" allegedly owed to plaintiffs. Am. Compl. ¶ 85. The court finds that the cited authorities are inapplicable to plaintiffs even if, as they allege, they should have been compensated as personal service contractors. For example, plaintiffs cite various provisions of Title 5 of the United States Code related to basic rates of pay, premium pay, paid leave and holidays, compensation for work-related injuries, and various retirement, health, and insurance benefits. Am. Compl. ¶ 85. However, the same definition for "employee" that applies to the Back Pay Act applies to all other provisions of Title 5, i.e., the provisions only apply to individuals "appointed in the civil service." 5 U.S.C. § 2105. The same is true for the regulations plaintiffs cite within Title 5 of the Code of Federal Regulations (e.g., 5 C.F.R. Parts 304 and 511), which tellingly all fall within Subchapter B entitled "Civil Service Regulations." Am. Compl. ¶ 85. Accordingly, the cited statutes and regulations do not require that any additional terms be included in plaintiffs' express contracts with the Broadcasting Board.
