Avoidance of SCA

Corduroy Frog said:

so they won't have to pay him a lousy $4.50 an hour for benefits.

Well I could imagine the contractor getting away with it until at some point a wise employee complains to the DOL.  In a quick view DOL's investigation and resulting enforcement action could include payment of the fringe, fines or possibly both.  I am not sure how far they might reach back to previous contracts to determine a contractors misgivings but my bet whatever statute of limitations applies they would pursue to the extent allowed.

Consider a real life story.   Contractor pays the required hourly wage and inflates it to include the fringe.   Using your numbers lets say wage is $15.00 and hourly fringe is $4.50.   So contractor pays employee $19.50 per hour and this is reflected on the contractors accounting records as the per hour wage.  There is noting booked as fringe on the contractors books.  Employee complains they are not getting the required fringe to DOL as check stub reflects no fringe.   DOL investigates.  DOL's enforcement ruling was the contractor was not paying the required fringe as accounting records did not support that he (it was a he) was.  The contractor had to do a back pay to the tree planting crew for the fringe benefits that were not paid.   It amounted to almost a years worth.  I was there, saw it happen and the extent of the DOL action in my view was predicated on a contractor who had demonstrated less than full cooperation on other current and past contracts in complying with SCA.

Your contractor is playing with fire and while he may not want to face the guillotine today, but when he finally does through a DOL enforcement action he will be a lot unhappier then than he is now.

And bluntly regardless of what position I might have with a contractor and with knowledge of possible inappropriate and  fraudulent activities of a firm I would dis-associate myself as I would be concerned of the risk of being pulled in as accomplice.   Or from a broader view, hard to complain about on how the Federal government works when part and parcel to assisting in an injustice with regard to compliance of something like SCA.

As an alternative disregard all my comments above and have the contractor sit down with a DOL wage and hour representative and have the contractor explain, debate, and conclude on the actions he is taking to possibly avoid SCA.   Maybe the DOL will assist him in the right way to best apply SCA in a more economical way as I get the feeling the contractor is rather naïve with regard to SCA in total.  Educating might go along way.

Lots of times when engaged in discussions about the this and that of SCA I refer folks to this as a helpful overview.....

https://www.dol.gov/agencies/whd/field-operations-handbook/Chapter-14

Thank you Mr. Culham.  I agree with your comments.  Maybe I could pose a question:

Is there a wage so low that the SCA cannot be avoided?  Like if an employee is paid only $20/hr. is it possible that he could be classified as something other than an SCA Labor Category.

Vern, are you out there my friend???

Wage amount is irrelevant for determining wage application.  Rather, it is the nature and purpose of the work and the employee that matter.  

If a brain surgeon was doing brain surgery work at $20/hr, it would not be SCA because brain surgery is not service work done by service employees.

On 5/15/2021 at 11:32 AM, Corduroy Frog said:

Please comment on this gross misrepresentation, and discuss what can happen to a government contractor as a result.

Combined with fraud? The possibilities are not quite endless, but include:

1. termination for default;
2. excess costs of reprocurement;
3. fines;
4. penalties;
5. personal liability for corporate officials;
6. civil law suits;
7. debarment; and
8. jail.

The last one is my personal favorite.

Just Google . You'll find all kinds of articles on the websites of law firms.

You've got an idiot for a client, and you can tell them I said so.

Corduroy Frog said:

Thank you Mr. Culham.  I agree with your comments.  Maybe I could pose a question:

Is there a wage so low that the SCA cannot be avoided?  Like if an employee is paid only $20/hr. is it possible that he could be classified as something other than an SCA Labor Category.

Vern, are you out there my friend???

Well I am left slightly confused as now the scenario changes by my read.  In the OP it was benefits now it appears that hourly wage is the issue along with classification.  I tend to defer to ji20874's comments regarding the new info.  Let me support his comment with this....

29 CFR 541.2 Job titles insufficient.

A job title alone is insufficient to establish the exempt status of an employee. The exempt or nonexempt status of any particular employee must be determined on the basis of whether the employee's salary and duties meet the requirements of the regulations in this part.

Has your client ever paid attention to the exact wording of SCA and these two words "bona fide" with regard to when an exemption is allowed for a professional employee as provided by Section 8(b) for SCA?   Maybe he should read the full content 29 CFR Part 541.

Has your client ever read a wage determination and aware of the Service Contract Act Directory of Occupations and its connection to the wage categories stated in wage determination?  If not you may want to visit it based on this statement found in wage determinations....

** SERVICE CONTRACT ACT DIRECTORY OF OCCUPATIONS **
The duties of employees under job titles listed are those described in the
""Service Contract Act Directory of Occupations"" Fifth Edition (Revision 1)
dated September 2015 unless otherwise indicated.

Has your client read the leading statement of a wage determination in these current times?  If not here it is....

Note: Under Executive Order (EO) 13658 an hourly minimum wage of $10.95 for
calendar year 2021 applies to all contracts subject to the Service Contract
Act for which the contract is awarded (and any solicitation was issued) on or
after January 1 2015. If this contract is covered by the EO the contractor
must pay all workers in any classification listed on this wage determination
at least $10.95 per hour (or the applicable wage rate listed on this wage
determination if it is higher) for all hours spent performing on the contract
in calendar year 2021. The EO minimum wage rate will be adjusted annually.
Additional information on contractor requirements and worker protections under
the EO is available at www.dol.gov/whd/govcontracts.

Is your client familiar with the  the "conformed occupation"  process of a wage determination?   If not here is a teaser....

Conformance Process:
The contracting officer shall require that any class of service employee which is
not listed herein and which is to be employed under the contract (i.e. the work to
be performed is not performed by any classification listed in the wage
determination) be classified by the contractor so as to provide a reasonable
relationship (i.e. appropriate level of skill comparison) between such unlisted
classifications and the classifications listed in the wage determination (See 29 CFR
4.6(b)(2)(i)).

Now go let you client know what Vern Edwards said, which I second and then give serious consideration to letting your client know that you no longer will represent him.

Part of the issue is geographical area.  If this were to occur in New Jersey or somewhere in the unionized states, an employee could invoke the DOL in a heartbeat.  Where I live, and in AL, GA, MS, AR, employees are not knowledgeable of the SCA, and even so will not blow the whistle on their employer for fear of being terminated.

My client is not so obtuse as I have presented.  I have dramatized this in order to paint the picture.  Yet it is true that SCA is avoided, even though money is available to cover it.  Some COs are not anxious to fund money, but none of them will refuse something they know to be legal.

It’s unfortunate that the government doesn’t conduct any labor interviews or review payrolls on service contracts, if this behavior (breach) is prevalent anywhere.

Joel,

You mention "the government" -- but the government (DOL) is free to do all the labor interviews and payroll reviews for service contracts that it wants to.  The contracting officer has no responsibility for such, unlike Davis Bacon, and I am okay with that.

Yep, I understand.

ji20874 said:

The contracting officer has no responsibility for such, unlike Davis Bacon, and I am okay with that.

Not so fast and not so true.  With absolutely no apologies any CO who feels that they can just put SCA in a contract and have no responsibility for administration of the requirements is not fulfilling their duty pursuant to the guidance of the FAR.  It may not be specifically stated in FAR part 22 like it is for D-B but it sure is provided for in the guiding principles.   And any senior CO who advocates such with "I am okay with that" is an equal to the OP's client. 

Let me pick just one example.  In applying  ji20874's suggestion it would seem that it is okay for a CO to just sit around and wait for for the DOL to come in and determine if a contractor is in violation of SCA before the CO takes action suggested in FAR 22.1023.   Or even more unimaginable a CO sitting around knowing that a contractors employees are working in unsanitary, hazardous, or dangerous conditions that threaten the health or safety of the service employees and be okay with that.  Sorry but I just shake my head and say REALLY! 

And I would add that such a general statement is not correct as some agencies have stepped up and fulfilled the responsibility that has always existed.  Too bad others do not follow.      https://www.fs.usda.gov/detail/r6/workingtogether/contracting/?cid=fseprd488842

joel hoffman said:

It’s unfortunate that the government doesn’t conduct any labor interviews or review payrolls on service contracts, if this behavior (breach) is prevalent anywhere.

The government "must".  FAR 1.602-2.

Corduroy Frog said:

Part of the issue is geographical area.  If this were to occur in New Jersey or somewhere in the unionized states, an employee could invoke the DOL in a heartbeat.  Where I live, and in AL, GA, MS, AR, employees are not knowledgeable of the SCA, and even so will not blow the whistle on their employer for fear of being terminated.

My client is not so obtuse as I have presented.  I have dramatized this in order to paint the picture.  Yet it is true that SCA is avoided, even though money is available to cover it.  Some COs are not anxious to fund money, but none of them will refuse something they know to be legal.

There you have it.  Knowledge of a gross injustice, possible fraud, statute violation, you name it and rather than contact the Inspector General or even the DOL, an individual involved closely in government work just casts off the matter as oh well its the geographical area, employees unwilling and government officials who close a minds eye.   

I guess in the scheme of things none of us have responsibilities so one might as well follow a suggestion made in another thread and throw out all contracting statutes and  rather than re-write them simply have none because everybody is "okay with that".

C Culham said:

There you have it.  Knowledge of a gross injustice, possible fraud, statute violation, you name it and rather than contact the Inspector General or even the DOL, an individual involved closely in government work just casts off the matter as oh well its the geographical area, employees unwilling and government officials who close a minds eye.

I'm reminded of a story from the early '00's, when a COTR and contractor conspired to avoid DOL-mandated wage increases by strategically reclassifying employees and even demoting them, in order to avoid funding constraints and to make the base "competitive" for receiving repair work. Funny thing, though, that wasn't the behavior that brought them to the attention of the Army CID and IG auditors and GAO auditors and DoJ attorneys, but that behavior surfaced during electronic discovery and interviews. Among other behaviors that were, shall we say, inappropriate.

Where was the CO in all this? Hah! More than 1,000 miles away, kept dumb and happy by the COTR's (and contractor's) reporting. 

I'd give you a link to the GAO report where (some) of this came out, but GAO got the facts way wrong. How do I know they got the facts way wrong? I was the team lead who spent several months at the base, doing the forensic accounting analysis--hired by the contractor to see just how bad the situation was. I had the pleasure of briefing CID folks and DoJ attorneys, and answering their questions.

The contractor ended-up paying a pretty penny, including back wages to the impacted employees. (But as I noted above, that was only the tip of the iceberg.) The COTR was charged with some felonies and I think he pleaded, but I also believe he lost his pension (18 months from retirement). As for the CO, I have no idea. The CO was simply not a factor because all they did was follow the COTR's directions, which including modding the contract and MIPR'ing the money as directed.

C Culham said:

And any senior CO who advocates such with "I am okay with that" is an equal to the OP's client.

Wrong.  And also unfair.

I said nothing about a contracting officer being complicit in illegality.  But it is a fact that the contracting officer DOES NOT have enforcement authority for SCA (unlike DB, where the contracting officer does have some enforcement authority).  

I am okay with DOL having exclusive enforcement jurisdiction for SCA.  That said, it goes without saying (and is therefore unnecessary to say) that a contracting officer with knowledge of a SCA noncompliance may refer the matter to DOL.

ji20874 said:

That said, it goes without saying (and is therefore unnecessary to say) that a contracting officer with knowledge of a SCA noncompliance may refer the matter to DOL.

It might also go without saying that an accounting consultant with knowledge of SCA noncompliance might refer the matter to DOL or other appropriate authorities.  In many jurisdictions, when a client seeks advice in order to commit a crime, such communications generally aren't privileged from disclosure.

Right.

ji20874 said:

I am okay with DOL having exclusive enforcement jurisdiction for SCA.  That said, it goes without saying (and is therefore unnecessary to say) that a contracting officer with knowledge of a SCA noncompliance may refer the matter to DOL

“May” refer the matter to DOL???? Are you saying that it’s an option for a KO whether or not to report knowing non-compliance with the contract requirements to the enforcement authority??

On 5/16/2021 at 5:03 PM, ji20874 said:

The contracting officer has no responsibility for such, unlike Davis Bacon, and I am okay with that.

This is what you initially said (emphasis added).   To help weave my cut and paste together you lead this statement with the fact that the DOL is free to do interviews and payroll reviews.   So is it not true that the CO is also?

ji20874 said:

But it is a fact that the contracting officer DOES NOT have enforcement authority for SCA (unlike DB, where the contracting officer does have some enforcement authority).

Next you attempt to wiggle out of your statement with the above (emphasis added).   Not a true statement and it is in my view a gross misrepresentation of the CO's responsibilities in contract administration as supported by the guiding principles of the FAR and specifically of SCA.  By specific example 52.222-41 requires the CO to be a part of the conformance process, the CO shall suspend a contract if asked by the DOL to do so if records are not provided as requested by authorized parties, and the CO may independently without DOL approval withhold such sums as the CO decides may be necessary to pay underpaid employees.  All in all pursuant to a contract, and not specific only to SCA, the CO is in the position to compel a contractor to observe and comply with the contract and its rules, laws, and statutes contained therein (aka enforcement).  

My statement stands.

MBrown said:

It might also go without saying that an accounting consultant with knowledge of SCA noncompliance might refer the matter to DOL or other appropriate authorities.

Whoa!  Accountants, perhaps more than any other profession, encounter things that are not right, and are dishonest.  Some of us are even requested to alter the books.  We are often requested to put lipstick on a pig and call it something else.

If we blew the whistle on everything we saw, we would not be able to find a job.  However, my response to anyone who requires me to change the financial reporting results, is that I'll hit the door.  If you have someone who will lie for you, you also have someone who will lie to you.  This has cost me at least one job in my career.

You should be able to put a glass eye in a duck's butt and be able to see this.

See FAR 52.222-41, paragraph (k):

Quote

(k) Withholding of payments and termination of contract. The Contracting Officer shall withhold or cause to be withheld from the Government Prime Contractor under this or any other Government contract with the Prime Contractor such sums as an appropriate official of the Department of Labor requests or such sums as the Contracting Officer decides may be necessary to pay underpaid employees employed by the Contractor or subcontractor. In the event of failure to pay any employees subject to the Service Contract Labor Standards statute all or part of the wages or fringe benefits due under the Service Contract Labor Standards statute, the Contracting Officer may, after authorization or by direction of the Department of Labor and written notification to the Contractor, take action to cause suspension of any further payment or advance of funds until such violations have ceased. Additionally, any failure to comply with the requirements of this clause may be grounds for termination of the right to proceed with the contract work. In such event, the Government may enter into other contracts or arrangements for completion of the work, charging the Contractor in default with any additional cost.

See also paragraph (t):

Quote

(t) Disputes concerning labor standards. The U.S. Department of Labor has set forth in 29 CFR parts 4, 6, and 8 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.

I think it is fair to say that the CO has some responsibility, especially when he or she suspects or has reason to believe that a contractor has violated the SCA. But that responsibility seems to be to report any suspicions to the Wage and Hour Division. See 29 CFR § 4.191.

The CO's authority to enforce the SCA is extremely limited. See 29 CFR 4.189. The findings of the DoL are binding on all agencies, that includes a finding that the contractor has not violated the SCA. Thus, I think a CO would be a fool to take any action against a contractor without a finding by and direction from the DoL. And few if any CO's and agency attorneys have the knowledge or administrative apparatus needed to conduct SCA investigations. In any case, a CO's investigative findings would have no legal effect given the DoL's exclusive authority.

As for termination for default, since the Contract Disputes Act does not apply to disputes pertaining to SCA compliance, and since a T for D is considered a final decision of a CO under the Disputes clause, a CO has no authority to terminate a contract on grounds of SCA noncompliance without a finding of a violation by the DoL. That means the CO's effective authority to enforce the SCA is limited if not non-existent.

Just now, Vern Edwards said:

That means the CO's effective authority to enforce the SCA is limited if not non-existent.

Appreciate the attempt to clarify.   However emphasized should have been this as well especially considering the "or".... .

52.222-41 (k)  The Contracting Officer shall withhold or cause to be withheld from the Government Prime Contractor under this or any other Government contract with the Prime Contractor such sums as an appropriate official of the Department of Labor requests or such sums as the Contracting Officer decides may be necessary to pay underpaid employees employed by the Contractor or subcontractor.

Overlooked as well is -

52.212-4(q) -  (q) Other compliances. The Contractor shall comply with all applicable Federal, State and local laws, executive orders, rules and regulations applicable to its performance under this contract.

As to a comparison to D-B I believe most overlook the fact that the emphasis of the DOL regulations relate to D-B and related acts.  So how about the fact that 52.212-4 at (r) the Contract Work Hours and Safety Standards 41 USC Chapter 87 are incorporated specifically in the contract noting that (r) can not be tailored.   I especially like the read of paragraph 3703.

https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/safe01.pdf

Overall my thoughts and comments are related to specifically a long ordeal in my past experience as a CO related to SCA where finger pointing always was at the other guy - the contractor, the COR, the CO, the agency local authority, and the head of the agency who in the end sat in front of a congressional hearing.  Through this ordeal it was clear to me that everyone has responsibility and dare I say authority to do something if and when they encounter someone where they as an individual know a contractor is violating SCA.

 I cringe at the tenor of the comments that suggest that anyone is okay with leaving observation, compliance and enforcement on SCA to the DOL solely.  So I guess the next time a CO, COR, inspector observe a drunk driving a truck on a forest road maintenance project they should simply report the matter to the DOL as a SCA violation, let the work continue, and be okay with that?  Oh too egregious you say?  Where is the line?  Not okay for the drunk but okay for a contractor to avoid paying a lousy $4.50 an hour for benefits?  The questions are forever but action nips it in the bud. 

You all pick your line, I know mine!    I am out.

There are vast differences between the KO’s authorities and responsibilities for administration as well as enforcement of the labor clauses for Construction vs. Service contracts.

Whether right or wrong, I sense that many offices who primarily  deal with service contracts probably aren’t actively or proactively administering the labor requirements for construction contracts and might be “looking the other way”, hands off, laissez-faire, dont get too involved.

I can understand that there isn’t too much visibility of the details in service Contracting, so it is easy not to get involved.

On 5/18/2021 at 9:40 AM, C Culham said:

To help weave my cut and paste together you lead this statement with the fact that the DOL is free to do interviews and payroll reviews.   So is it not true that the CO is also?

What gives a contracting officer the authority to conduct interviews with contractor employees?  Can a contracting officer compel such interviews?

Under the Service Contract Act clause? No, not without authorization from DoL's Wage and Hour Division. Nor does the CO have access to the contractor's records without authorization from DoL's Wage and Hour Division.  See FAR 52.222-41.

Retreadfed said:

What gives a contracting officer the authority to conduct interviews with contractor employees?  Can a contracting officer compel such interviews?

Vern Edwards said:

Under the Service Contract Act clause? No

Where in 52.222-41, and its implementing law (statute or case law) or regulation is a CO conducting interviews prevented?   Likewise where in 52.222-41 does it state that a CO must have the DOL authorization to do interviews.  Specific references would be appreciated such as statute or case law.

As to CO's compelling such interviews CO's use all kinds of tools in a contract beyond a specific term, condition, clause, provision etc. to compel inspection to determine if a contractor is in compliance with the contract.

Carl,

I'm in favor of correct principles, and am opposed to confusion.  Too many contracting officers don't understand correct principles for SCA and too many don't understand correct principles for DB.  They are different.  I think your insistence on treating them the same may increase confusion.

I think I understand each.  I would never do wage interviews on a SCA contract because I know the difference.  If I ever suspected anything on a SCA contract, I would refer the matter to DOL -- or if a contractor employee complained, I would refer the matter or the employee to DOL.

I want our audience to know that a contracting officer's roles are very different on SCA and DB contracts.

C Culham said:

Where in 52.222-41, and its implementing law (statute or case law) or regulation is a CO conducting interviews prevented?

The relationship between the government and its contractors is CONTRACTUAL!  The CONTRACT spells out each party's rights and obligations.

Where in FAR 52.222-41 OR IN ANY OTHER STANDARD CONTRACT CLAUSE does it say that a service contractor must permit any government official other than an authorized representative of the DoL's Wage and Hour Division to interrupt its employees at their work to be interviewed, including the CO? 

Instead of me showing you where its prevented by the clause, YOU SHOW ME where it's permitted, other than as authorized by the DoL Wage and Hour Division.

I know you can read a contract. Do you think COs are little dictators?

ji20874 said:

They are different.

Agreed different statutes and contract clauses implementing the specifics of the D-B and SCA labor laws.  But tell me ji20874 where in the context of 52.222-6 ( I will call it D-B) does it say that the CO can and shall do interviews and/or review payrolls?

The confusion is by CO's who fell they need explicit permission to do something.   I would offer that is wrong-minded with regard to the applying the guidance of the FAR.  Specifically the guiding principles of the FAR provide this ( I know you know it but I must state it) a CO - "may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority."  So once again I simply pose with regard to FAR subpart 22.10 where  is it addressed or otherwise stated that there is a prohibition in doing labor interviews for a an SCA contract?   

ji20874 said:

I want our audience to know that a contracting officer's roles are very different on SCA and DB contracts.

Sorry ji20874 its called inspection, inspection that while the FAR may not give you a step by step primer how to do it the effort can  be the same for both labor laws.   Yes I agree you won't get payrolls automatically, not required by D-B by the way but rather FAR 52.222-8, so lets not add further confusion as your sole reference to D-B is misleading.   In the end you think a CO's roles are different but in the general view inspection responsibilities are no different.  A CO  just has some expanded tools at their disposal like the requirement of say 52.222-8 for a D-B contract.   For SCA, while there are no tools there is no restraint either. 

Most interesting to me is the fact that you will rail against the FAR tenants as being not all encompassing but support a view that gives rise the very injustices of application of SCA by contractors, no (aka failed) inspection by the government.

C Culham said:

But tell me ji20874 where in the context of 52.222-6 ( I will call it D-B) does it say that the CO can and shall do interviews and/or review payrolls?

It doesn't say it there. It says it in the Payrolls and Basic Records clause, FAR 52.222-8, paragraph (c):

Quote

(c) The Contractor or subcontractor shall make the records required under paragraph (a) of this clause available for inspection, copying, or transcription by the Contracting Officer or authorized representatives of the Contracting Officer or the Department of Labor. The Contractor or subcontractor shall permit the Contracting Officer or representatives of the Contracting Officer or the Department of Labor to interview employees during working hours on the job. If the Contractor or subcontractor fails to submit required records or to make them available, the Contracting Officer may, after written notice to the Contractor, take such action as may be necessary to cause the suspension of any further payment. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12.

Emphasis added. Do you want me to tell you where FAR says that the contracting officer shall conduct D-B investigations and interviews under construction contracts?

Yes, people should come here to learn. But from who?

ji20874 said:

I think your insistence on treating them the same may increase confusion.

Right on!

Vern Edwards said:

OR IN ANY OTHER STANDARD CONTRACT CLAUSE

For non-commercial item the inspection clause, for commercial item a tailored inspection clause.   And do not go arguing that a a tailored clause is non-standard as it is.   Tailoring is first a process that is allowed as a standard if such tailoring is the standard in the industry.  Further absent a tailored clause post inspection rights include the inspection of the services and the conformance of those services with regard to compliance of all Federal, State and local laws.

Vern Edwards said:

YOU SHOW ME where it's permitted,

The FAR says that a CO "may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority."  While this guiding principle is not in a contract there is permission expressed in the contract to exercise authority, again inspection.

I am at a loss for words where in the context of a CONTRACTUAL RELATIONSHIP THAT YOU WOULD BELIEVE YOU COULD INSPECT EVERY NOOK AND CRANNY OF A SERVICE PROVIDED EXCEPT THE CONTRACTUAL DEMANDED COMPLIANCE WITH SCA.  No words!

Vern Edwards said:

It says it in the Payrolls and Basic Records clause, FAR 52.222-8, paragraph (c):

Oh really!  Hmmm did I not already say this....

C Culham said:

not required by D-B by the way but rather FAR 52.222-8

Vern Edwards said:

I know you can read a contract. Do you think COs are little dictators?

You bet I can read a contract but do you read posts in a thread?   No sir not little dictators but damn sure the authority to ensure the contract performance complies with every single term and condition provided in the contract inclusive of paying employees performing a service the appropriate wage and fringe benefits and safe and sanitary working conditions.   

Just now, Vern Edwards said:

I think your insistence on treating them the same may increase confusion.

Wrong On!

Read a contract as a whole!

The inspection clause must be read in the context of the SCA clause, which addresses the issue specifically, refers to 29 CFR Parts 4, 6, and 8, and states the government's rights with regard to SCA enforcement. It assigns those rights to the DoL, not the CO, unless the DoL makes the CO an authorized representative.

FAR 52.246-4 says that the CO can inspect "services performed, workmanship, and materials." It says nothing about SCA interviews and it cannot be read to authorize them in light of FAR 52.222-41 and the regulations promulgated by the DoL Moreover, that clause is prescribed by FAR Part 46, which is about quality assurance and makes no mention of inspection for a purpose such as you propose. Your concerns are addressed by FAR Part 22 and 29 CFR.

C Culham said:

Yes I agree you won't get payrolls automatically, not required by D-B by the way but rather FAR 52.222-8, so lets not add further confusion as your sole reference to D-B is misleading.

Payrolls are not required by Davis-Bacon? The Davis-Bacon Act is codified at 40 USC Ch. 31. Subchapter IV covers wage rate requirements. Section 3145, Regulations governing contractors and subcontractors, paragraph (a) says:

The Secretary of Labor shall prescribe reasonable regulations for contractors and subcontractors engaged in constructing, carrying out, completing, or repairing public buildings, public works, or buildings or works that at least partly are financed by a loan or grant from the Federal Government. The regulations shall include a provision that each contractor and subcontractor each week must furnish a statement on the wages paid each employee during the prior week.

The Secretary of Labor's regulations, 29 CFR § Part 5, Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction (Also Labor Standards Provisions Applicable to Nonconstruction Contracts Subject to the Contract Work Hours and Safety Standards Act), Section 5.6, paragraph (a)(3) states:

Quote

The Federal agency shall cause such investigations to be made as may be necessary to assure compliance with the labor standards clauses required by § 5.5 and the applicable statutes listed in § 5.1. Investigations shall be made of all contracts with such frequency as may be necessary to assure compliance. Such investigations shall include interviews with employees, which shall be taken in confidence, and examinations of payroll data and evidence of registration and certification with respect to apprenticeship and training plans. In making such examinations, particular care shall be taken to determine the correctness of classifications and to determine whether there is a disproportionate employment of laborers and of apprentices or trainees registered in approved programs. Such investigations shall also include evidence of fringe benefit plans and payments thereunder. Complaints of alleged violations shall be given priority.

 Emphasis added. Now see 29 CFR 5.5, Contract provisions and related matters, subparagraph (a)(3), Payrolls and basic records. Read it and compare it to the text of FAR 52.222-8. That clause implements D-B.

COs are required to obtain payrolls and conduct interviews under D-B as implemented by the DoL pursuant to direction from Congress. The DoL has published no such rules pursuant to the SCA, and a CO has neither contractual rights nor duties in that regard.

There is no statutory, regulatory, professional, or moral basis for your insistence in this matter. And you interpret the guiding principles as indicating that a CO can interpret contract clauses as he or she sees fit. They mean no such thing.

I find it ironic that you would resort to a weasely interpretation of the inspection clause in order to ensure a contractor's integrity with respect to SCA compliance. What happened to good faith and fair dealing?

Vern Edwards said:

But keep it coming, because the more you post the more you undermine your credibility, which is my purpose.

This is a direct violation to the terms of the Forum but then again that is your purpose.  You regression to unprofessionalism is tiring when you can not provide specific responses to specific questions.

Where in 52.222-41, and its implementing law (statute or case law) or regulation is it specifically stated that a CO is absolutely prevented from and shall not do interviews?  

Likewise where in 52.222-41 does it state that a CO must have absolute permission from the DOL authorization to do interviews?

In posing the questions I understand your interpretation and opinion yet it is just that.  You have not provided  a conclusive determination by the DOL, courts, administrative law venues, that supports your interpretation.  Rather you have reverted to the same bully pulpit comments.  And while I understand many will think your position is right on there are those that I know who do not think so. 

I have supported my position by reference that the 52.222-41 provides that a CO may withhold such sums as the CO decides may be necessary to pay underpaid employees employed by the Contractor.   A determination that would be supported by some inspection effort of the CO to make such a decision and determination.   

And most importantly where in an inspection clause does it say a CO can not inspect or otherwise prevents the CO from inspecting the contractors compliance with Federal, State and local law?   To this point your very premise provides for a conflict in the contract where at one place is says with out exception that a contractor must comply with Federal law yet at another, as you opine, that the CO is prevented from inspection compliance with Federal law specific to SCA.  Your position of contract read as whole is contradictory.

C Culham said:

Where in 52.222-41, and its implementing law (statute or case law) or regulation is it specifically stated that a CO is absolutely prevented from and shall not do interviews?

I responded to the above earlier, with this:

Vern Edwards said:

The relationship between the government and its contractors is CONTRACTUAL!  The CONTRACT spells out each party's rights and obligations.

Where in FAR 52.222-41 OR IN ANY OTHER STANDARD CONTRACT CLAUSE does it say that a service contractor must permit any government official other than an authorized representative of the DoL's Wage and Hour Division to interrupt its employees at their work to be interviewed, including the CO? 

Instead of me showing you where its prevented by the clause, YOU SHOW ME where it's permitted, other than as authorized by the DoL Wage and Hour Division.

I await your response. I will not respond to another inquiry from you until you answer that question.

What clause entitles the CO to interview the contractor's employees with respect to the contractor's SCA compliance? FAR 52.222-41 requires the contractor to submit to investigations by the DoL Wage and Hour division. Where does it say that the contractor must submit to investigations initiated by the CO without authorization from DoL?

Is it your position that a contracting officer can do anything it wants to a contractor that the contract does not expressly prohibit? If that were the case, why have a changes clause, or a suspension of work clause, or a termination for convenience clause?

Well?

I apologize for my statement of purpose. I have deleted it. I was angry. I find your self-righteousness about this issue, and your implication that any CO who disagrees with you is derelict in their duty, vexing in the extreme. If it had not been for that I would have ignored your posts.

Contracting Officer: I would like to interview your employees to determine your compliance with the SCA.

Contractor: I never agreed to let you do that. Go pound sand.

@C Culham How does contracting officer respond?

Vern Edwards said:

I responded to the above earlier, with this:

Yes I read it and as you well know the "this" did not provide the details requested.  

In fact it stated this 

Vern Edwards said:

OR IN ANY OTHER STANDARD CONTRACT CLAUSE

and I provided you with the clause that otherwise is converse to your position.  So I answered your question.

Vern Edwards said:

What clause entitles the CO to interview the contractor's employees with respect to the contractor's SCA compliance? FAR 52.222-41 requires the contractor to submit to investigations by the DoL Wage and Hour division. Where does it say that the contractor must submit to investigations initiated by the CO without authorization from DoL?

Please see the following response to Don Mansfield and offer you opinion inclusive of specific case law or regulation where the CO violated their authority under the four corners of the contract.

Vern Edwards said:

Is it your position that a contracting officer can do anything it wants to a contractor that the contract does not expressly prohibit? If that were the case, why have a changes clause, or a suspension of work clause, or a termination for convenience clause?

Well?

Reasonably I believe you know I can answer that question and so can you so will leave it at that.

Vern Edwards said:

I apologize for my statement of purpose. I have deleted it. I was angry. I find your self-righteousness about this issue, and your implication that any CO who disagrees with you is derelict in their duty, vexing in the extreme. If it had not been for that I would have ignored your posts.

You see I am angry and confused as well.  Once 50 some years ago I embraced contracting as a profession under the mentorship of many great minds.   That included yours before Vern Edwards became the Vern Edwards that now, more than once, has expressed the want to discredit me with off the cuff innuendo and prove it to me attitude rather than answering legitimate questions.  You use to do it but not anymore.  So much for mentorship and wanting to build a professional contracting community.  And I say this with all due respect and with acknowledgement of your apology yet I clearly understand you will do it again as I understand you can never be off-base or possibly wrong.

And to clarify your attempt to mislead the intentions of my statement please think about the context in which my statement was made. That statement was this -

 "The contracting officer has no responsibility for such, unlike Davis Bacon, and I am okay with that." and the such was interviews and payroll reviews and was a statement I took exception to.  I have demonstrated exactly where the CO does have responsibility. You disagree and that is fine but you have yet to provide me with an authoritative regulation or case law that prevents or other undermines my view that the CO does have responsibility and authority other than your strong opinion.  So leave it at that.  Why?  Because I know you could find it and since you have not it is simply your strong opinion just like it is mine.  To this I would only offer that my opinion is bolstered by the exact actions I took as a field CO where never once was I challenged or condemned for going beyond the authority vested in me as a CO.  NEVER!

Don Mansfield said:

Contracting Officer: I would like to interview your employees to determine your compliance with the SCA.

Contractor: I never agreed to let you do that. Go pound sand.

@C Culham How does contracting officer respond?

Glad to respond but your simple question based on an example scenario like most posts in Forum lacks content so let me enrich it for you. 

I invite you to read it all and then let me know where a CO has overstepped his authority as provided for in the 4 corners of the contract and the general authority granted to him pursuant to the guiding principles of the FAR.

Finally, please feel free to change the scenario after No. 3 for any kind of SCA contract to let me know what you would do. 

1.    Government issues a solicitation for janitorial services that contains FAR 52.222-41.  Additionally, it contains 52.246-4.   The government subsequently awards a contract and these two clauses remain in the contract_.  (Note it does not matter whether it is non-commercial or commercial as in the latter for the “if” in your scenario that I am expanding the Government through market research has concluded that in the world of commercial contracting in-process inspection occurs for the type of janitorial work contemplated and on which the contract is awarded.”_

2.    At contract award the contractor is provided with 21 (there are 21 buildings considered to be work sites pursuant to the other details of the contract) Form WH-1313s appropriately marked noting SCA applies and a copy of the SCA wage determination to be displayed on the reverse of the form is also provided. In this example no post-award conference was held but the CO did provide a written overview of important post award matters that follow the guidance of FAR 42.503 and agency policy.  SCA is addressed including the requirement to post the WH-1313 (See FAR 22.1018)

3.    During contract performance in process inspection is performed at one of the buildings.  The CO (or duly authorized representative) cannot find the WH-1313 displayed anywhere within the structure at which the work is being performed at.

4.    Noting the absence of the form the CO consults with or otherwise has a face-to-face meeting (one might call this an interview or it otherwise could be defined as such) with a janitor, who has been designated as the contractor’s on-site representative at this building and consults with them as to where the WH-1313 might be.   The janitor indicates no knowledge of such a form (aka poster) being displayed.  Further the janitor indicates there is no wage determination posted anywhere as well.

5.    The CO continues the face-to-face meeting with the janitor by asking if the janitor has knowledge that SCA applies.  The janitor indicates confusion.  The CO further asks if the janitor knows what is the rate of pay that he is being paid.   The janitor voluntarily offers that he is not being paid an hourly rate but rather he is being paid by each toilet he cleans.  Discussion ends after a little more face to face discussion that enhances the CO understanding that the janitor has no knowledge of SCA, wage rates, his rights, etc.

6.    The CO continues the in-process inspection and determines that the janitor’s closet provided for necessary contractor furnished equipment to perform the work contains items lacking MSDS’s and it is clear that the cleaning solutions that contain hazardous and volatile ingredients are being stored in an unsafe and life-threatening way.

7.    At completion of inspection rather than addressing the in-process inspection issues with the onsite representative the CO contacts the contractor herself.   The CO has taken this route noting the fact that the janitor has no knowledge whatsoever of SCA.

8.    The CO in meeting with the contractor expresses concern and asks the contractor the following question with regard to the other 20 buildings being serviced under the contract – “I would like to interview your employees to determine your compliance with the SCA.”

9.    The contractor responds – “I never agreed to let you do that. Go pound sand.”

10. CO replies by reminding the contractor of the requirement for paying SCA, display of poster, etc. and further reminds the contractor of the in-process inspection right of the contract.  And again, requests the opportunity to further meet one on one with employees (interview).

11. The contractor again refuses.  The CO then tells the contractor that absent the ability to further determine the extent of the contractor’s contract requirement to meet the basic requirements of SCA the CO would be referring the contractor to the DOL for further investigation and possible enforcement action. 

12. At this point one of two things will happen - The contractor being a real do right person reverses their pound sand attitude agrees to further interviews as well as requests the opportunity to fix any misgivings regarding posters, material storage, payment of SCA wages/fringes, etc. etc.  OR the contractor continues the pound sand attitude at which point the CO hands the contractor a written notice of non-compliance with contract requirements regarding SCA and provides same to the DOL requesting further investigation.

Well, further engagement is clearly pointless. Carl is wrong on all points, and I have made my case.

But what bothers me most is his suggestion that COs use the guiding principles to justify unorthodox interpretations of standard contract clauses like FAR 52.246-4, Inspection of Services, and the commercial items inspection provision in FAR 52.212-4. Those clauses are prescribed by FAR Part 46 and addresses quality assurance, not enforcement of specific labor laws, which is addressed, if at all, in FAR Part 22.

C Culham said:

The FAR says that a CO "may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority."  While this guiding principle is not in a contract there is permission expressed in the contract to exercise authority, again inspection.

That approach has already been tried by one contracting agency, when its contracting officer cited the guiding principle to justify an unorthodox interpretation of FAR 52.211-10. The case is Tidewater Contractor's Inc. v. Dept. of Transportation, CBCA 50, 07-1 BCA ¶ 33525 (2007). I will quote the relevant portion of  the decision:

Quote

I. The Issuance of the Notice to Proceed

The first issue to be addressed is whether the contract permits the Government to issue an “off-site” notice to proceed before the preconstruction conference and prior to approving the required submittals. In order to resolve this issue, this Board must identify and apply “principles of general contract law.” Franconia Associates v. United States, 536 U.S. 129, 141 (2002) (quoting Priebe & Sons, Inc. v. United States, 332 U.S. 407, 411 (1947)). The starting point for interpreting a contract invariably is the “plain language” of the agreement. McAbee Construction, Inc. v. United States, 97 F.3d 1431, 1435 (Fed. Cir. 1996). As the United States Court of Appeals for the Federal Circuit has stated:

We give the words of the agreement their ordinary meaning unless the parties mutually intended and agreed to an alternative meaning. In addition, we must interpret the contract in a manner that gives meaning to all of its provisions and makes sense.

Jowett, Inc. v. United States, 234 F.3d 1369, 1372 (Fed. Cir. 2002).

When the terms of a contract are clear and unambiguous, there is no need to resort to extraneous circumstances for its interpretation. See Sea-Land Service, Inc. v. United States, 553 F.2d 651, 658 (Ct. Cl. 1977), cert. denied, 483 U.S. 1012 (1978). The plain reading of a contract term is “the meaning derived from the contract by a reasonably intelligent person acquainted with the contemporary circumstances.” Firestone Tire & Rubber Co. v. United States, 444 F.2d 547 (Ct. Cl. 1971). A written agreement is ambiguous only when a plain reading of the contract could result in more than one reasonable interpretation. Metric Constructors, Inc. v. National Aeronuautics & Space Administration, 169 F.3d 747, 751 (Fed. Cir. 1999). It is not enough that the parties differ in their interpretation of the contract clause. See Community Heating & Plumbing Co. v. Kelso, 987 F.2d 1575, 1578 (Fed. Cir. 1993). Nor may outside evidence be brought in to create an ambiguity where the language is clear. Interwest Construction v. Brown, 29 F.3d 611, 615 (Fed. Cir. 1994).

The contract required the Government to issue its notice to proceed by the seventieth day following bid opening, i.e., by January 8, 2004. Section 108 of the contract stated that “a preconstruction conference will be held after the contract is awarded and before beginning work. . . . [T}he notice to proceed must be issued before the commencement of any work.” Section 108.01 of FP-96 stated that a preconstruction conference would be held after the contract was awarded and before the notice to proceed was issued.

The Government asserts that the January 5, 2004, notice to proceed met the contract requirements under FAR 1.102-4(e). This provision, which is included in the section entitled “Role of the acquisition team,” states:

"The FAR outlines procurement policies and procedures that are used by members of the Acquisition Team. If a policy or procedure, or a particular strategy or practice, is in the best interest of the Government and is not specifically addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, Government members of the Team should not assume it is prohibited. Rather, absence of direction should be interpreted as permitting the Team to innovate and use sound business judgment that is otherwise consistent with law and within the limits of their authority. Contracting officers should take the lead in encouraging business process innovations and ensuring that business decisions are sound."

FAR 1.102-4(e). However, pursuant to the terms of the clause, FAR clause 1.102-4 applies only when the “procedure . . . is in the best interest of the Government and is not specifically addressed in the FAR.” In this case, however, the FAR specifically addresses the issuance of a notice to proceed. See, e.g., FAR 11.404(b) (referencing FAR 52.211-10). Therefore, FAR clause 1.102-4 does not apply in this situation.

Obviously, since all FAR clauses are "specifically addressed" by the FAR, the guiding principles in FAR 1.102(d) and 1.102-4(e) cannot be used to justify an "innovative" clause interpretation.

As far as I have been able to determine, this is the only reported instance in which a CO has tried to apply the FAR guiding principles to contract interpretation.

Carl Culham is a good man, interested in seeing that contractors obey the laws that govern their contracts. In this case, however, he has gone overboard, and he's threatening to take the inexperienced and uninformed with him. I am not alone in thinking this with respect to this matter of CO activism in Service Contract Act enforcement.

Compare FAR Subpart 22.4, which implements the Davis-Bacon Act, with FAR 22.10, which implements the Service Contract Act. FAR 22.406 says, in pertinent part:

Quote

22.406-1 Policy.

      (a) General. Contracting agencies are responsible for ensuring the full and impartial enforcement of labor standards in the administration of construction contracts. Contracting agencies shall maintain an effective program that shall include-

           (1) Ensuring that contractors and subcontractors are informed, before commencement of work, of their obligations under the labor standards clauses of the contract;

           (2) Adequate payroll reviews, on-site inspections, and employee interviews to determine compliance by the contractor and subcontractors, and prompt initiation of corrective action when required;

           (3) Prompt investigation and disposition of complaints; and

           (4) Prompt submission of all reports required by this subpart.

In contrast, FAR 22.10, which implements the Service Contract Act, says no such thing. Instead, it says:

Quote

22.1004 Department of Labor responsibilities and regulations.

Under the Service Contract Labor Standards statute, the Secretary of Labor is authorized and directed to enforce the provisions of the Service Contract Labor Standards statute, make rules and regulations, issue orders, hold hearings, make decisions, and take other appropriate action. The Department of Labor has issued implementing regulations on such matters as-

      (a) Service contract labor standards provisions and procedures (29 CFR Part 4, SubpartA);

      (b) Wage determination procedures (29 CFR Part 4, subparts A and B);

      (c) Application of the Service Contract Labor Standards statute (rulings and interpretations) (29 CFR Part 4, SubpartC);

      (d) Compensation standards (29 CFR Part 4, SubpartD);

      (e) Enforcement (29 CFR Part 4, SubpartE);

      (f) Safe and sanitary working conditions (29 CFR Part 1925);

      (g) Rules of practice for administrative proceedings enforcing service contract labor standards (29 CFR Part 6); and

      (h) Practice before the Administrative Review Board (29 CFR Part 8).

and

Quote

22.1024 Cooperation with the Department of Labor.

The contracting officer shall cooperate with Department of Labor representatives in the examination of records, interviews with service employees, and all other aspects of investigations undertaken by the Department. When asked, agencies shall furnish the Wage and Hour Administrator or a designee, any available information on contractors, subcontractors, their contracts, and the nature of the contract services. The contracting officer shall promptly refer, in writing to the appropriate regional office of the Department, apparent violations and complaints received. Employee complaints shall not be disclosed to the employer.

In my opinion, COs  who decide to become activist innovators in SCA enforcement are biting off more than they can chew and courting trouble.

Vern Edwards said:

In this case, however, he has gone overboard,

Let me clarify as this statement by Vern Edwards is misleading.   

In a previous post I offered just a tidbit regarding an "ordeal".  For clarity sake and with historic reference to my "NEVER'' here is a starting point (see below) to anyone who wants to do further research where an agency, absent any term or condition beyond the usual in SCA contract info that were deemed to be labor intensive took on the activity of doing routine interviews of SCA contract employees related to the reforestation industry.  This activity was directed at the level of the agency head.    https://www.congress.gov/110/chrg/CHRG-110hhrg44485/CHRG-110hhrg44485.pdf  It was not biting off more than could be chewed it was solving a problem and that problem was and exists today in that inadequate contract administration is being done with regard to the requirements of SCA.

Not point specific but and interesting read all the same https://www.gao.gov/products/gao-21-11   And yes it will be pointed at with the comment see, it is DOL's problem.  But then think again.

If the premise of Vern Edwards is firm that only DOL has the vested authority it confuses me that in reality the CBCA has found that a contracting agency can easily change that authority by contract terms without, let me repeat, WITHOUT, any authority from the DOL.   https://www.cbca.gov/files/decisions/2019/SULLIVAN_08-29-19_6029, 6030__SOTERA_DEFENSE_SOLUTIONS,_INC.V_DEPT._OF_AGRICULTURE.pdf

Activist in ensuring the appropriate treatment of SCA labor is not innovation it is a responsibility. 

It is sad that Vern Edwards feels my specific points by example of how a SCA issue would be handled is wrong on all points as it is my informed and experienced view that it is such thinking that has created a huge problem in Federal government contracting.

C Culham said:

If the premise of Vern Edwards is firm that only DOL has the vested authority it confuses me that in reality the CBCA has found that a contracting agency can easily change that authority by contract terms without, let me repeat, WITHOUT, any authority from the DOL.   https://www.cbca.gov/files/decisions/2019/SULLIVAN_08-29-19_6029, 6030__SOTERA_DEFENSE_SOLUTIONS,_INC.V_DEPT._OF_AGRICULTURE.pdf

What are you  talking about? That's a case about entitlement to an REA. What "authority" did the agency change? The CO determined that the SCA did not apply to an IDIQ contract and did not include the SCA clause. DoL ruled that it did apply. The CO had to insert the clause and apply SCA minimum wages and fringes to task orders after award. Since the SCA was applied post-award, the parties had to determine to which of the contract labor categories the SCA applied. Rather than the contractor doing that, as ordinarily would be the case under FAR 22.2019, the CO did it. (Another activist CO. Turns out to have been an unforced error.) The contractor incurred additional costs to comply and sought an REA. The CO tried to weasel out of it by invoking the Christian Doctrine, etc., and the board found that the agency owed the contractor some money.

Keep posting. You're doing great. But please do something about your run-on sentences. I don't always craft good sentences, but if I ever sent something like this:

C Culham said:

It is sad that Vern Edwards feels my specific points by example of how a SCA issue would be handled is wrong on all points as it is my informed and experienced view that it is such thinking that has created a huge problem in Federal government contracting.

I'd be worried about dementia. You write a lot of those. Those aren't just typos.

Take a deep breath before hitting Submit.

C Culham said:

This activity was directed at the level of the agency head.

If I'm thinking this is the same thing you are thinking, I  don't recall that is was a SCA matter.  Wasn't that a Migrant and Seasonal Agricultural Worker Protection Act (MSPA) matter?

The UASCE has extensive guidance/policies and procedures  on labor for both DBA and SCA.

Engineer Pamphlet 1180-1-1 Service Contract Act Labor Relations:

https://www.publications.usace.army.mil/Portals/76/Publications/EngineerPamphlets/EP_1180-1-1.pdf

See in particular Chapter 6, Contract Administration and Service Contract Issues

Engineer Regulation 1180-1-8 Labor Relations in Construction:

https://www.publications.usace.army.mil/Portals/76/Publications/EngineerRegulations/ER_1180-1-8.pdf

C Culham said:

In a previous post I offered just a tidbit regarding an "ordeal".  For clarity sake and with historic reference to my "NEVER'' here is a starting point (see below) to anyone who wants to do further research where an agency, absent any term or condition beyond the usual in SCA contract info that were deemed to be labor intensive took on the activity of doing routine interviews of SCA contract employees related to the reforestation industry.  This activity was directed at the level of the agency head.    https://www.congress.gov/110/chrg/CHRG-110hhrg44485/CHRG-110hhrg44485.pdf  It was not biting off more than could be chewed it was solving a problem and that problem was and exists today in that inadequate contract administration is being done with regard to the requirements of SCA.

Congressional hearings are not administrative or judicial proceedings and have no legal effect. I'll read the hearing report when I have time, but I reject the notion that it has any relevance to what's been discussed in this thread. It's just one account of something that happened. What I have read so far is not persuasive of anything other than that someone at USDA was trying to mollify and reassure Congress.

joel hoffman said:

Engineer Pamphlet 1180-1-1 Service Contract Act Labor Relations:

Gee, I just read this in that Corps of Engineers publication:

Quote

6-8. Enforcement. As noted above, the DOL has exclusive enforcement authority under the SCA. Accordingly, reliance on advice from contracting agency officials is not a defense against a contractor's liability for back wages under the Act (see 29 CFR 4.187(e)(5)). COs must therefore exercise due caution with respect to questions arising as to contractor compliance with the Act.

Let's see... translation... Don't act with authority that you don't have.

Vern Edwards said:

Keep posting. You're doing great.

The basis is captured in these statements wherein the agency took on the responsibility for classifying employees, usually a responsibility reserved for the contractor and DOL.

"Prior to award of the contract, the NIH contracting officer prepared a “determination of service contract act (SCA) exemption,” indicating that the contract positions were bona fide executive, administrative, or professional positions and that all labor categories on the contract met the criteria for the exemption. Exhibit 1. The contract stated that the positions on the contract were exempt from the SCA but advised that an ordering contracting officer would have to determine whether the SCA applied to any positions requested on a task order: G.7.4 Service Contract Act The preponderance of the GWAC’s labor categories are considered bona fide executive, administrative, professional labor and are generally exempt from the Service Contract Act (SCA). To the extent that any labor is subject to the SCA and is within scope of a Task Order and the GWAC, the [ordering contracting officer] must identify such work under a separate CLIN [contract line item] on the task order and apply wages as required under FAR [Federal Acquisition Regulation] 22.10 [48 CFR 22.10 (2012)], Service Contract Act Wage Determinations."

"The contract at issue in this appeal imposes greater obligations on the Government than required by the SCA FAR clauses. Not only did it require the contracting officer to determine whether the SCA applied, the contract also required that the ordering contracting officer identify “under a separate CLIN on the task order and apply wages as required under FAR 22.10, Service Contract Act Wage Determinations,” “any labor [that] is subject to the SCA and is within scope of a Task Order.” The contract, by its terms, put the responsibility on the contracting officer to identify the labor categories subject to the SCA."  Or in other words not the contractor and the DOL!

"The contract at issue in this appeal imposes greater obligations on the Government than required by the SCA FAR clauses. Not only did it require the contracting officer to determine whether the SCA applied, the contract also required that the ordering contracting officer identify “under a separate CLIN on the task order and apply wages as required under FAR 22.10, Service Contract Act Wage Determinations,” “any labor [that] is subject to the SCA and is within scope of a Task Order.” The contract, by its terms, put the responsibility on the contracting officer to identify the labor categories subject to the SCA."  

Vern Edwards said:

I'd be worried about dementia.

Once again your attempt to discredit me in public is a violation of the terms of the Forum.   l am astute enough to know you would do it again, will do again and I said so, so not surprised.  I guess since I am right about one thing I could be right about a lot of things.   

On a explicit personal note your comment is disrespectful to me and especially my mother-in-law and my brother who are both in facilities due to failing minds.   You do not know my medical history nor the pain I go through every day as the trustee for my brother.   In no uncertain words your callous comments need to stop and stop now.   I demand it NOW!

ji20874 said:

If I'm thinking this is the same thing you are thinking, I  don't recall that is was a SCA matter.  Wasn't that a Migrant and Seasonal Agricultural Worker Protection Act (MSPA) matter?

Actually it was all inclusive and I believe a full read of the testimony of 2006 and  2008 will verify. 

But start here...do an internet search on "Men of the Pines - Pineros"  and you might include the Sacramento Bee in the search as well.

C Culham said:

On a explicit personal note your comment is disrespectful to me and especially my mother-in-law and my brother who are both in facilities due to failing minds.

I don't know anything about your relatives. I worry about dementia because my mother went through that before she died. I test myself every morning by reciting my Army serial number. I figure that if I forget that it's time for the trip to Switzerland.

C Culham said:

Actually it was all inclusive and I believe a full read of the testimony of 2006 and  2008 will verify.

Verify what? That's 46 pages of small print. What are we supposed to see?

Yeah, I remember.  Because of some real and regrettable problems that attracted national attention and congressional scrutiny regarding conditions in migrant work camps on fefderal lands, there were hearings and so forth.  As part of that, DOL admitted that they have a hard time fulfilling their duties for contracts Forest Service seasonal work because the employee work sites move around and so forth.  So the Forest Service developed requirements and special training for Forest Service people (COs, CORs) to be mindful of certain things to avoid regrettable happenings.   Interested persons may read about this at https://www.fs.usda.gov/detail/r6/workingtogether/contracting/?cid=fseprd488842 (Fact Sheet for Labor Intensive Service Contracts (LISC)).  There, I make note of the following--

Quote

The Forest Service will inspect contract activity to verify compliance with the SCA by a prime contractor and subcontractors. The U.S. Department of Labor is the enforcement agency that will investigate violations of SCA including failure to correct deficiencies found during contract inspection effort by Forest Service.

The DOL WHD and Forest Service developed training to help its COs and CORs in this matter, and the Forest Service does this to cover for DOL's inability.  But I see this as an exception to the normal pattern -- in the normal pattern, or what I call the correct principle, contracting officers do not do wage surveys of SCA employees and SCA contractors do not submit payroll information to contracting officers.

ji20874 said:

The DOL WHD and Forest Service developed training to help its COs and CORs in this matter, and the Forest Service does this to cover for DOL's inability.  But I see this as an exception to the normal pattern -- in the normal pattern, or what I call the correct principle, contracting officers do not do wage surveys of SCA employees and SCA contractors do not submit payroll information to contracting officers.

In short, the DoL delegated authority to Forest Service personnel to do some things in its place, since the work was remote, which is consistent with the language of the SCA clause and the regulations in 29 CFR about "authorized representatives."

Just now, ji20874 said:

But I see this as an exception to the normal pattern -- in the normal pattern, or what I call the correct principle, contracting officers do not do wage surveys of SCA employees and SCA contractors do not submit payroll information to contracting officers.

Thank you.   But a full refresh I believe will also remind you that it was not an exception but the tip of an iceberg that lead to discussions of application of the same standards across the board.

C Culham said:

But a full refresh I believe will also remind you that it was not an exception but the tip of an iceberg that lead to discussions of application of the same standards across the board.

Let's stay focused on the issue: Should COs, acting on their own authority, be proactive in enforcing the SCA by, among other things, interviewing contractor employees without express authorization from DoL? And does a contract subject to the SCA authorize COs to engage in such activities?

Here is what the hearings were about:

Quote

Today our Subcommittee will be conducting an oversight hearing to review the role of the Forest Service and the Department of Labor in protecting the health and welfare of workers on National Forest System lands.

This topic is very important to me and a number of Members of this Committee. Several of our colleagues asked former Chairman Pombo to conduct an oversight hearing on this topic last Congress but received no response. I am pleased that we are finally taking a look at this important topic, and thank my colleagues and our witnesses for joining us today.

The name ‘‘pineros’’ translates literally to ‘‘men of the pines’’ and refers generally to workers employed to perform important and often dangerous reforestation and thinning work on our National Forest System lands. In many cases, pin˜eros are working in the United States through the H-2B guest worker program.

A series in the Sacramento Bee in 2005 painted an alarming picture of the conditions facing pin˜eros while performing this important work on our National Forests. The series found documented employer exploitation, government neglect, crowded work vans in which workers died in car accidents, and a lack adequate training, protective gear and medical supplies. All this, despite the fact that these workers are on Federal land fulfilling Federal responsibilities.

Some have described the work done by pineros as one of the most hazardous occupations in the United States. And one pinero was sadly quoted as saying, ‘‘it was like slavery.’’

The Forest Service responded in early 2006 by releasing new contract requirements intended to address worker safety. Yet, the Forest Service has never released an assessment of these efforts, making it difficult to determine what impact, if any, these new requirements have had on worker safety. Sadly, many have told us that nothing has changed. I look forward to receiving detailed information from the Forest Service today on the extent of their increased safety inspections, what the results of such inspections have been, and what more the Agency needs to be doing.

Here is what the Deputy Chief of Forest Service Business Operations said at the hearings, page 4, with reference not just to the SCA, but to several other labor and immigration laws:

Quote

[O]ur posture relative to contract administration is that primary jurisdiction for H-2B workers resides with the Department of Homeland Security through its citizenship and immigration service and with the Department of Labor through employment and training administration, wage and hour division and occupational safety and health administration.

As contract administrators, we are usually the first interface and first contact with employees of contractors on national forest land. Our role is not to replace that role of the Department of Labor, state agencies or the Department of Homeland Security in the administration of laws within their jurisdiction. Our role is coordination with those agencies, oversight and reporting based on our observations in administering these contracts.

H-2B workers are "temporary, non-agricultural workers."

Just now, Vern Edwards said:

Let's stay focused on the issue: Should COs, acting on their own authority, be proactive in enforcing the SCA by, among other things, interviewing contractor employees without express authorization from DoL? And does a contract subject to the SCA authorize COs to engage in such activities?

Okay so to further unpack and get on track go back to my post that responded to  to Don Mansfield's post and point directly to each and every instance where the CO needed express authorization from the DoL and was, in your view, the CO acting on their own authority and not that allowed by the 4 corners of the contract.

C Culham said:

Okay so to further unpack and get on track go back to my post that responded to  to Don Mansfield's post and point directly to each and every instance where the CO needed express authorization from the DoL and was, in your view, the CO acting on their own authority and not that allowed by the 4 corners of the contract.

I didn't read your response to Don, and I won't.  He can read it.

But I am interested in the hearings.

C Culham said:

For non-commercial item the inspection clause,

What inspection clause?  There are several.  Also, remember, contracts are between the government and contractor, not contractor employees.  What contract clause gives a contracting officer the right to interview employees or requires a contractor employee to consent to such an interview?

The USACE handles tens or hundreds of millions of dollars of service contracts per year and billions of dollars worth of construction. They have very good HQ attorneys who specialize in labor relations. I would trust what the policy is and the basis for it.

Vern Edwards said:

I didn't read your response to Don, and I won't.  He can read it.

But I am interested in the hearings.

Your most likely found it by start in 2006- https://www.govinfo.gov/content/pkg/CHRG-109shrg28144/html/CHRG-109shrg28144.htm

Retreadfed said:

What inspection clause?

It has been referenced in other posts - 52.246-4.

Retreadfed said:

What contract clause gives a contracting officer the right to interview employees or requires a contractor employee to consent to such an interview?

52.246-4 (d)

Someone wrote that they believe there was a violation of forum rules.  I will lock this topic until I can review the topic posts.  This will take time.