SCA, Part 2

C Culham said:

As 52.246-4 has been mentioned it provides for the right to CO for inspection for quality assurance of a contract,

Carl, in the earlier thread, I asked you what contract clause gives the contracting officer the right to interview contractor employees.  You responded by citing to FAR 52.246-4(d).  Here is the text of paragraph (d)  " If the Government performs inspections or tests on the premises of the Contractor or a subcontractor, the Contractor shall furnish, and shall require subcontractors to furnish, at no increase in contract price, all reasonable facilities and assistance for the safe and convenient performance of these duties."  I find nothing in that language that gives a contracting officer the right to interview contractor employees.  Please tell us what language in (d) provides a contracting officer the right to interview contractor employees?

For purposes of the discussion, here's the applicable definition of "inspection" from FAR 2.101:

Quote

Inspection means examining and testing supplies or services (including, when appropriate, raw materials, components, and intermediate assemblies) to determine whether they conform to contract requirements.

Proceed.

Retreadfed said:

Carl, in the earlier thread, I asked you what contract clause gives the contracting officer the right to interview contractor employees.  You responded by citing to FAR 52.246-4(d).  Here is the text of paragraph (d)  " If the Government performs inspections or tests on the premises of the Contractor or a subcontractor, the Contractor shall furnish, and shall require subcontractors to furnish, at no increase in contract price, all reasonable facilities and assistance for the safe and convenient performance of these duties."  I find nothing in that language that gives a contracting officer the right to interview contractor employees.  Please tell us what language in (d) provides a contracting officer the right to interview contractor employees?

The clause does not prevent interviews by the government either. Additionally you concentrate on off Government property inspection.  Am I to understand you believe there are different rights under the clause.  If so, how so?

Don Mansfield said:

For purposes of the discussion, here's the applicable definition of "inspection" from FAR 2.101:

Proceed.

What about the FAR part 37 definition of services?  Am I to understand that you are suggesting that there is no responsibility of the CO to assure quality of a contractors performance of ALL terms and conditions of a contract?  If so is not such a view inconsistent with, by example, CPARS as to what is to be evaluated regarding a contractors performance.

And as stated more than once in this debate not one case, or other binding legal opinion, that supports that only DOL has the right to do interviews pursuant to 52.222-41.

On 5/29/2021 at 1:24 AM, C Culham said:

The clause does not prevent interviews by the government either.

That is not the issue.  The issue is what in that clause gives the contracting officer  the right to conduct interviews of contractor employees.  From your answer, I assume that you cannot find any such language.

Just now, Retreadfed said:

That is not the issue.  The issue is what in that clause gives the contracting officer  the right to conduct interviews of contractor employees.  From your answer, I assume that you cannot find any such language.

Yes it is as the issue is the construct of contract language or in other words privity of contract.   Privity is between the agency awarding the contract, as represented by the CO, and the contractor.  The clause in question 52.222-41 provides third party beneficiary to the DOL to have some rights under the contract.  Pursuant to the clause the contractor is "permit"ing  the DOL to do interviews.  Reference paragraph (i)(4) of 52.222-41.   In granting the permission to DOL I find nothing in the clause where the contractor is obviating the contracting agency (the CO) from the right to do interviews or otherwise conditioning the DOL permission as a sole right.   Or in other words you can not find any language that gives the DOL sole right rather than a permitted right.   This is bolstered by the fact, as I have pointed out, that the CO has a role with regard to violations as noted in the clause and implementing statute.  

As a comparison consider in the construct of contracts awarded per the FAR and delegations of authority with regard to CO to ACO.  Without such delegation the ACO would have no authority to act.  With regard to the issue we are discussing the DOL would have no authority to act without a similar delegation - interviews and sole right in handling disputes - if the contract did not contain the clause.   Delegation is not necessary where the contract provides the third party beneficiary to DOL.

On 5/28/2021 at 10:24 PM, C Culham said:

Am I to understand that you are suggesting that there is no responsibility of the CO to assure quality of a contractors performance of ALL terms and conditions of a contract?

No, I'm not suggesting anything. I just wanted to prevent an overly broad interpretation of "inspection" that would include nontechnical requirements. 

I'll also add the following:

Quote

46.000 Scope of part.

This part prescribes policies and procedures to ensure that supplies and services acquired under Government contract conform to the contract’s quality and quantity requirements. Included are inspection, acceptance, warranty, and other measures associated with quality requirements.

Quote

46.101 Definitions

Contract quality requirements means the technical requirements in the contract relating to the quality of the product or service and those contract clauses prescribing inspection, and other quality controls incumbent on the contractor, to assure that the product or service conforms to the contractual requirements.

Government contract quality assurance means the various functions, including inspection, performed by the Government to determine whether a contractor has fulfilled the contract obligations pertaining to quality and quantity.

@C Culham,

How would the interviews not be a "collection of information" as defined by 5 CFR § 1320.3(c)?

Quote

Collection of information means, except as provided in §1320.4, the obtaining, causing to be obtained, soliciting, or requiring the disclosure to an agency, third parties or the public of information by or for an agency by means of identical questions posed to, or identical reporting, recordkeeping, or disclosure requirements imposed on, ten or more persons, whether such collection of information is mandatory, voluntary, or required to obtain or retain a benefit. “Collection of information” includes any requirement or request for persons to obtain, maintain, retain, report, or publicly disclose information. As used in this Part, “collection of information” refers to the act of collecting or disclosing information, to the information to be collected or disclosed, to a plan and/or an instrument calling for the collection or disclosure of information, or any of these, as appropriate.

(1) A “collection of information” may be in any form or format, including the use of report forms; application forms; schedules; questionnaires; surveys; reporting or recordkeeping requirements; contracts; agreements; policy statements; plans; rules or regulations; planning requirements; circulars; directives; instructions; bulletins; requests for proposal or other procurement requirements; interview guides; oral communications; posting, notification, labeling, or similar disclosure requirements; telegraphic or telephonic requests; automated, electronic, mechanical, or other technological collection techniques; standard questionnaires used to monitor compliance with agency requirements; or any other techniques or technological methods used to monitor compliance with agency requirements. A “collection of information” may implicitly or explicitly include related collection of information requirements.

(2) Requirements by an agency for a person to obtain or compile information for the purpose of disclosure to members of the public or the public at large, through posting, notification, labeling or similar disclosure requirements constitute the “collection of information” whenever the same requirement to obtain or compile information would be a “collection of information” if the information were directly provided to the agency. The public disclosure of information originally supplied by the Federal government to the recipient for the purpose of disclosure to the public is not included within this definition.

(3) “Collection of information” includes questions posed to agencies, instrumentalities, or employees of the United States, if the results are to be used for general statistical purposes, that is, if the results are to be used for statistical compilations of general public interest, including compilations showing the status or implementation of Federal activities and programs.

(4) As used in paragraph (c) of this section, “ten or more persons” refers to the persons to whom a collection of information is addressed by the agency within any 12-month period, and to any independent entities to which the initial addressee may reasonably be expected to transmit the collection of information during that period, including independent State, territorial, tribal or local entities and separately incorporated subsidiaries or affiliates. For the purposes of this definition of “ten or more persons,” “persons” does not include employees of the respondent acting within the scope of their employment, contractors engaged by a respondent for the purpose of complying with the collection of information, or current employees of the Federal government (including military reservists and members of the National Guard while on active duty) when acting within the scope of their employment, but it does include retired and other former Federal employees.

(i) Any recordkeeping, reporting, or disclosure requirement contained in a rule of general applicability is deemed to involve ten or more persons.

(ii) Any collection of information addressed to all or a substantial majority of an industry is presumed to involve ten or more persons.

Don Mansfield said:

service conforms to the contractual requirements.

With regard to 46.101 should not the above quote be highlighted as well?  Considering that the service is the "time and effort" of a contractor does not the time need to conform to the requirements of SCA? 

Your position has inconsistency when on one hand you do not believe the CO should not expend effort with regard to conformance of SCA but believe the DOL should.    The government does want and does expend effort to determine assurance that the contractor is complying with SCA and  both the CO and the DOL have the onus to expend that effort.

Don Mansfield said:

5 CFR § 1320.3(c)

Okay.....yet I find this point lacks consistency as well.   If the CO can not ask then how can the DOL?   In the context of the quote are not DOL and CO  "agency" and possibly specific to DOL per a contract "third party"?   So if it applies it applies to both? 

I also do not think that the reference is applicable as the implementing statues of SCA grant authority for the gathering of information with regard to possible violations of SCA.   Or, stated another way I do not think that bringing  5 CFR 1320.3(c) to the table by a contractor would bar the government from obtaining information from a contractor with regard to a potential violation of SCA.   In a quick read 5 CFR 1304.4 seems to support my thought.

Carl, you seem to be changing your argument.  First, you said that the inspection of services clause gave the contracting officer the authority to interview contractor employees.  Now you are saying it is 52.222-41(i)(4).  However, (i)(4) specifically deals with DoL's ability to interview contractor employees.  Further, (i)(4) is not a creature of the FAR, but a FAR compliance with DoL regulations promulgated to implement the SCA.  Specifically, see 29 CFR 4.6(g) which requires the language found in (i)(4) to be inserted in contracts subject to the SCA.

Going back further to source documents, 41 U.S.C. 6707(a),addressing enforcement of the SCA, states "Sections 6506 and 6507 of this title govern the Secretary’s authority to enforce this chapter, including the Secretary’s authority to prescribe regulations, issue orders, hold hearings, make decisions based on findings of fact, and take other appropriate action under this chapter."  In turn, 41 U.S.C. 6506(b) asserts that "The Secretary may make, amend, and rescind regulations as necessary to carry out this chapter."  41 U.S.C. 6506(e) then provides that "The Secretary, or an authorized representative of the Secretary, may make investigations and findings as provided in this chapter and may, in any part of the United States, prosecute an inquiry necessary to carry out this chapter."   Thus, under this statute, the Secretary can delegate authority to conduct investigations into possible violations of the SCA.  However, without a delegation of authority, the sole power to conduct investigations of possible violations of the SCA rests with the Secretary.  

Putting all of this together, we see that 52.222-41(i)(4) is nothing more than a tool required by regulations issued by the Secretary to carry out his enforcement powers under 41 U.S.C. 6506.  I don't see anything in the foregoing that would indicate that a contracting officer can usurp the power of the Secretary to conduct interviews of contractor personnel without a specific delegation of authority from the Secretary.

Carl Culham simply does not know what he is talking about.

Some of the things he said in the closed thread and in this continuation are so wrong that it would take an article of law review length to address them all. For example, his the notion that the Department of Labor is a "third party beneficiary" is absurd. If there are any third-party beneficiaries under an SCA-covered government contract they would be the contractor's covered employees.

C Culham said:

The clause in question 52.222-41 provides third party beneficiary to the DOL to have some rights under the contract.

He clearly does not know what he's writing about. He is immune to evidence and argument and simply insists, and with each post he wanders further down the nonsense path.

Carl was apparently traumatized by his experience with the Forest Service (USFS) when it and the DOL were criticized by Congress for not looking out for the foreign workers. The trauma has spun him off to an unorthodox, extreme, and unwarranted interpretation of FAR Subpart 22.10, FAR 52.222-41 and FAR 52.246-4.

His experience was unusual because of the location of the worksite, and the deal worked out between the USFS and the DOL departed from standard governmentwide practice. The DOL authorized USFS personnel, pursuant to 29 CFR Part 4, to conduct interviews with certain contractor employees because they were working in remote forests. That is confirmed by the text of the hearings that he referred us to in the prior thread.

Everyone is entitled to an opinion. I would not be bothered if Carl said that COs should take an interest in a contractor's SCA compliance, promptly notify the DOL about any complaints, and comply with its instructions, but he took an extreme position in the prior thread on May 16, at 5:03 PM when responding to ji20874, who said that the DOL is responsible for SCA enforcement and that was okay with him:

Quote

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".

Carl has been wrong in all his substantive points, as several persons have pointed out. He ignores that fact that FAR Subpart 22.10 and 52.222-41 must be read in conjunction with 29 CFR Part 4. He ignores long-standing and widely-accepted SCA practice. His invocation of the guiding principles to interpret a contract clause has been refuted by the Civilian Board of Contract Appeals, as cited in the prior thread. His interpretation of the Inspection clause, FAR 52.246-4, is inconsistent with FAR Part 46, which prescribes the clauses, and the plain language of the clause, and is unsupported by anything other than his say-so.

I see nothing wrong with an argument that COs should be interested in a contractor's SCA compliance, but Carl is wrong to suggest that untrained people should go out and conduct interviews of contractor employees without DOL authorization, if for no other reason than such interviews by untrained contract specialists might squirrel an ongoing or future DOL investigation. According to the congressional hearings to which he referred us, the USFS personnel who conducted interviews in the forests were given special training by the DOL.  Nothing in FAR Subpart 22.10, FAR 52.222-41, or 29 CFR Part 4 justify any such course of action, and "inspection" pursuant to FAR 52.246-4 does not encompass such an activity or give a contracting officer any contractual right to do so.

I respect Carl on many contracting matters, but not on this. I will not give him or this thread another moment of my attention.

A thread like this should not be on the Wifcon Beginners page, if on any Wifcon page at all.

Retreadfed said:

Carl, you seem to be changing your argument.

No sir I have not.  I still believe authority exists within the inspection clause for due diligence of of the "time and effort" of a contractor.  I provided a scenerio in the previous thread that demonstrates such when I responded to another.  

Retreadfed said:

However, (i)(4) specifically deals with DoL's ability to interview contractor employees.

From you view maybe but the wording actually deal with the contractor agreeing to "permit" DOL to do interviews.

Retreadfed said:

Further, (i)(4) is not a creature of the FAR,

So your assertion is that a statute and a CFR of another agency automatically applies to a contract and does not need to be the FAR?  I

As noted we it see it different and so be it.   Noted several times how you see it is not confirmed in case law or other specific legal opinion.  I understand that mine is not as well and so ends the dilemma until there is case law. 

Retreadfed said:

Thus, under this statute, the Secretary can delegate authority to conduct investigations into possible violations of the SCA.  However, without a delegation of authority, the sole power to conduct investigations of possible violations of the SCA rests with the Secretary.

As I have pointed out both the statute and the 52.222-41 clause with a specifically positioned "or" address this.  Its not a delegation it is statutory language that says - 

"Enforcement of section

In accordance with regulations prescribed pursuant to section 353 of this title, the Federal agency head or the Secretary is hereby authorized to carry out the provisions of this section."

The statute is not DOL's wording or delegation it is that of the Congress and this statement of the statute gives direction to the DOL that their regulations are to give such authority to the agency head.

Sorry - Late to the party.

A few questions outside of the extensive background to the OP.

1. Why would a CO want to take on the responsibility of the DOL?

2. If so, why have the DOL? 

3. Wouldn't employees file complaints if not paid what they are required to be paid (with DOL)?

4. Isn't this already addressed with the contractor submitting a quote/offer for evaluation (compliance with the requirements of the SOL and in turn the contract's when signed/accepted)?

Vern Edwards said:

I will not give him or this thread another moment of my attention.

I believe Vern has said this because in the spirit of discussions found throughout Forum he is a valued resource in finding great information, especially case law or other defining legal opinion, that helps in supporting or not supporting a premise made.  In this most particular case of 52.222-41 Vern has been unable to provide such information.   Rather he provides statements like "Carl Culham simply does not know what he is talking about."  That is his opinion and I have mine and that is it, nothing more with the exception that he depends on the bully pulpit to promote his opinion and I relegated mine to the statutes, regulations, and case law (absence of in this case) to address his challenge  "Lets stay focused...".  You see he wants to make it about me rather than providing the references he needs to make it about a interpretation of contract.

I do agree the thread could be moved, no problem there, but disagree that as proposed in other threads this debate on what a clause does or does not allow is exactly what WIFCON is all about.

This has been a spirited discussion.  For me, my thought is unchanged.  I will treat Davis-Bacon contracts differently than Service Contract Act contracts. 

For the former, I will require payroll submissions and conduct employee interviews. 

For the latter, I won't require payroll submissions or conduct employee interviews.  The exception would be if I returned to an agency covered by the Migrant and Seasonal Workers Agricultural Protection Act (MSPA) and that agency had an arrangement with DOL to perform some DOL duties.

In either case, I'll report anything to DOL that should be reported, and will provide assistance as DOL requires.

Other practitioners will have to make their own decisions.

SInce this is the beginner's forum, I think we will better serve our readers by helping them understand that Davis-Bacon Act and Service Contract Act contracts are very different, and that contracting officers have very different responsibilities for those.  I am uncomfortable with trying to treat these similarly.

Constricting Officer said:

Sorry - Late to the party.

1. As provided I do not think the responsibilities of the DOL are  they are the responsibilities of the CO as well. 

2. Could that question not be asked o other "boiler plate" clauses in the contract as well.   From discussion past why have anyone paying attention or even have a clause that says a contractor is to comply with Federal, state and local laws.   About covers it so no need for any monitoring for quality assurance with regard to the socio-economic clauses of a contract. 

3.  No.   Examples exist and even in the previous thread it was implied that employees do not complain at the risk of adverse action by an employer.

4.  Do not quite get your question.  The contractor agrees to compliance but whether compliance happens or not is the root to the discussion or in other words how do you know if a contractor is complying or not.

ji20874 said:

This has been a spirited discussion.

No doubt about it.   I too am fine leaving it to those to make their own decision.  I hope I have provided information for thought.

ji20874 said:

I'll report anything to DOL that should be reported

What would you report? 

Without inquiry does that mean one would just wait for information on employee mistreatment and/or contractor noncompliance regarding SCA? From who?   How does that information get to a CO in a way that suggests referral to the DOL to encourage a full investigation/review? 

 We all know that there are contractors that do not comply with SCA so do you just request DOL do interviews of all contracts, or wait for the few of the many to get caught when DOL finally decides to review a specific contract on their own, when an employee complains, when a union complains or the many by chance happenings that cause a CO concern.   

With sincere honesty I have provided an approach that helps assure contractors comply with SCA.   In offering my approach I have been told many things that in my view has amounted to "Well we have always done it that way" without a concrete representation and reference as to why.   Is my approach right or wrong remains to be seen and I would gladly reconsider my position should someone produce reference rather than a interpretation that shows a CO is acting out of their scope of authority or that of a contract that contains 52.222-41 to ask for information regarding a contractors compliance with SCA, especially that interviews by the CO are prohibited.

C Culham said:

1. As provided I do not think the responsibilities of the DOL are  they are the responsibilities of the CO as well.

"The U.S. Department of Labor's Wage and Hour Division (WHD) is responsible for administering and enforcing some of the nation's most important worker protection laws. WHD is committed to ensuring that workers in this country are paid properly and for all the hours they work, regardless of immigration status." - How to File a Complaint | U.S. Department of Labor (dol.gov)

C Culham said:

2. Could that question not be asked o other "boiler plate" clauses in the contract as well.   From discussion past why have anyone paying attention or even have a clause that says a contractor is to comply with Federal, state and local laws.   About covers it so no need for any monitoring for quality assurance with regard to the socio-economic clauses of a contract.

Here's one boiler plate clause:

"52.223-18 Encouraging Contractor Policies to Ban Text Messaging While Driving."

Doesn't mean we "left-seat-right-seat" with their drivers to confirm once a week.

C Culham said:

No.   Examples exist and even in the previous thread it was implied that employees do not complain at the risk of adverse action by an employer.

That may very well be the case, but that is on the employee. 

C Culham said:

4.  Do not quite get your question.  The contractor agrees to compliance but whether compliance happens or not is the root to the discussion or in other words how do you know if a contractor is complying or not.

Murder, theft, arson and driving while under the influence are all illegal in this country. We basically agree to those terms when we're born, but the police don't go around to every citizen each morning and ask them if they complied with the law.

Everyone in DC has a government purchased and issued cell phone. Sure there is something those contracts that says they can't be made in a China sweat shops. News flash - they are!

C Culham said:

"Enforcement of section

In accordance with regulations prescribed pursuant to section 353 of this title, the Federal agency head or the Secretary is hereby authorized to carry out the provisions of this section."

What is this from?

Constricting Officer said:

Everyone in DC has a government purchased and issued cell phone. Sure there is something those contracts that says they can't be made in a China sweat shops. News flash - they are!

So there you go!  

To your last two posts feel free to be signatory as a CO and not worry about assurance of ALL  contract requirements.  Quite permissible as nobody else worries.

Retreadfed said:

What is this from?

41 USC 352

C Culham said:

To your last two posts feel free to be signatory as a CO and not worry about assurance of ALL  contract requirements.  Quite permissible as nobody else worries.

There it is. You sign and administer your contracts as you see fit. I shall do the same. Easy day.

Carl, there is no 41 U.S.C. 352.

Retreadfed said:

Carl, there is no 41 U.S.C. 352.

Present 2/1/10 - [USC05] 41 USC 352: Violations (house.gov)

Missing by 1/7/11 - Document not Found (house.gov)

So that section has not existed for 10 years.

Retreadfed said:

So that section has not existed for 10 years.

Ok my bad....and appreciate you trusted my citation in my original post. Does 41 usc 6705(d) work for you?

On 6/1/2021 at 2:16 PM, C Culham said:

As I have pointed out both the statute and the 52.222-41 clause with a specifically positioned "or" address this.  Its not a delegation it is statutory language that says - 

"Enforcement of section

In accordance with regulations prescribed pursuant to section 353 of this title, the Federal agency head or the Secretary is hereby authorized to carry out the provisions of this section."

The statute is not DOL's wording or delegation it is that of the Congress and this statement of the statute gives direction to the DOL that their regulations are to give such authority to the agency head.

Carl, you are stretching the words of the statute, that has been recodified at 41. U.S.C. 6705 since 2011, into something that is totally at odds with what it actually says.  The statute now reads "In accordance with regulations prescribed pursuant to section 6707(a)–(d) of this title, the Secretary or the head of a Federal agency may carry out this section."  Nothing in the statute requires DoL to delegate its authority to enforce the SCA to another agency.  Instead, it gives DoL the discretion to grant such a delegation in regulations promulgated by DoL.  Unless DoL delegates such authority to the head of an agency, DoL has exclusive power to enforce the SCA in accordance with 41 U.S.C. 6707.

Retreadfed said:

Carl, you are stretching the words of the statute, that has been recodified at 41. U.S.C. 6705 since 2011, into something that is totally at odds with what it actually says.  The statute now reads "In accordance with regulations prescribed pursuant to section 6707(a)–(d) of this title, the Secretary or the head of a Federal agency may carry out this section."  Nothing in the statute requires DoL to delegate its authority to enforce the SCA to another agency.  Instead, it gives DoL the discretion to grant such a delegation in regulations promulgated by DoL.  Unless DoL delegates such authority to the head of an agency, DoL has exclusive power to enforce the SCA in accordance with 41 U.S.C. 6707.

My position remains. The "or" is carried to the 52.222-41 clause.

Carl, nothing in 52.222-41 comes close to saying what is in 41 U.S.C. 6705 or 6707.  You are grasping at straws to defend the indefensible.

I understand the point of you contract admin point @C Culham. There is nothing wrong with monitoring compliance. Make sure everyone is getting paid what they should be. Either way, there isn't U.S.C. or regulatory standing to support your stance.

Retreadfed said:

You are grasping at straws to defend the indefensible.

Let me try.

41 USC 6705 - Violations provides that the agency head "may carry out this section" pursuant to 6707 (a-d)  and I see no requirement for delegation. But I will follow your logic anyways and point to (a) of 6707 which says "Sections 6506 and 6507 of this title govern the Secretary’s authority to enforce this chapter,".   Notably 6705 is missing.  But still following your logic let me refer to 52.222-41 at (k) which states - "or such sums as the Contracting Officer decides may be necessary to pay underpaid employees employed by the Contractor or subcontractor. "  

Conclusion - Tthe "or" of the USC is carried to regulation with the view that how would a CO decide sums necessary without doing some sort of due diligence, dare I say interviews, asking for contractors payrolls, etc.   I have readily admitted that if the contractor were to attempt to avoid a request by the CO for such information that the matter would be turned over to the DOL for "enforcement" yet as stated I see nothing in the clause, that would prevent the CO from making such a request to perform what they are allowed to do----withhold "sums".

My straw I guess.

C Culham said:

Violations provides that the agency head "may carry out this section" pursuant to 6707 (a-d)

That is a misstatement of what the statute says.  6705 says that that the Secretary of head of a Federal agency may carry out that section, in accordance with regulations issued under 6707.  In turn, 6707 gives the Secretary the authority to issue regulations.  No where in the SCA is the head of an agency, other than the Secretary, given authority to issue regulations regarding enforcement of the SCA.  Thus, if the head of an agency is to carry out 6705, that would have to be done in accordance with regulations issued by the Secretary.  If those regulations do not delegate the Secretary's authority to carry out investigations and enforcement actions to the head of a Federal agency, that agency head has no authority to carry out such investigations or enforcement actions.  This is bolstered by the fact that 6707 refers to 41 U.S.C. 6505.  Subsection (e) of that latter section states "The Secretary, or an authorized representative of the Secretary, may make investigations and findings as provided in this chapter and may, in any part of the United States, prosecute an inquiry necessary to carry out this chapter."  This clearly refers to an authorized representative of the Secretary.  A contracting officer cannot be an "authorized representative of the Secretary" unless the Secretary designates him/her to be such representative.  

Looking at 52.222-41(k), the only power granted to a contracting officer is to determine if the amount due covered workers as a result of a violation determined by the Secretary is adequate.  The contracting officer is not granted any power to determine that a violation has occurred.  The determination of the amount due would be based on the record compiled by the Secretary, not an independent investigation by the contracting officer.

I have to jump in here in support of Retreadfed, who said:

Retreadfed said:

6705 says that that the Secretary of head of a Federal agency may carry out that section, in accordance with regulations issued under 6707.  In turn, 6707 gives the Secretary the authority to issue regulations.  No where in the SCA is the head of an agency, other than the Secretary, given authority to issue regulations regarding enforcement of the SCA.

In 1979, the Office of Federal Procurement Policy (OFPP) and the Department of Labor got into a dispute about the authority of OFPP to issue policies about the Service Contract Act. The President asked the U.S. Attorney General for an opinion about which agency had what powers. The Attorney General issued an opinion entitled, "Office of Federal Procurement Policy—Authority to Determine Whether the Service Contract Act, Walsh-Healey Act. or Davis-Bacon Act Applies to Classes of Federal Procurement Contracts," 43 U.S. Op. Atty. Gen. 150, March 9, 1979.

In that opinion the AG said:

Quote

All of the contract labor standards give the Secretary [of Labor] power to interpret them through regulations. Before the enactment of Pub. L. 93-400 [the OFPP Act] it was well settled that the Secretary had authority under the contract labor standards to interpret their substantive provisions, including those dealing with coverage, and the courts and Comptroller General deferred to any interpretation not clearly contrary to law.

Quote

The authority of an executive agency under any other law to prescribe 'policies, regulations, procedures, and forms of procurement' is expressly made subordinate to OFPP's authority under this section by 41 U.S.C. § 408. [Now 41 U.S.C. § 1121(c)(3).]

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Thus, the legislative history of Public Law 93–400 recognizes a distinction between the ‘procurement aspects' of the contract labor standards statutes and the substantive enforcement of those statutes. OFPP was given authority to set policy over the procurement aspects in the interest of uniformity but it was not given substantive authority over the achievement of socio-economic objectives. This division of responsibility corresponds with that originally recognized under the contract labor standards statutes—the Department of Labor sets the basic interpretation of the Acts and establishes the wage rates, and the individual contracting agencies implement the Acts through the exercise of their procurement functions... The quite separate responsibility of interpreting and enforcing the socio-economic purposes of the contract labor standards was not conferred on OFPP.

If the OFPP does not have the authority to interpret and enforce the labor laws, and if the authority of agency heads is subordinate to the authority of the OFPP, it follows that the agency heads have no authority to interpret and enforce the labor laws. The SCA clauses in FAR implement DOL rules.

When you read FAR 52.222-41 and 29 CFR part 4, together, as you must, it is clear that the agency head's and a contracting officer's authority to enforce the payment of minimum labor rates is subject to the decisions and authorization of the DOL. That is why disputes about the SCA are not subject to the Contract Disputes Act, COs cannot make final decisions in such matters, and the boards of contract appeals and the Court of Federal Claims have no jurisdiction over SCA enforcement disputes under the CDA.

The inspection of services clause, FAR 52.246-4, does not give a CO authority to conduct employee interviews or enforce the SCA. The clause is prescribed by FAR Part 46. See FAR 52.101(c):

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Prescriptions. Each provision or clause in subpart  52.2 is prescribed at that place in the FAR text where the subject matter of the provision or clause receives its primary treatment. The prescription includes all conditions, requirements, and instructions for using the provision or clause and its alternates, if any. The provision or clause may be referred to in other FAR locations.

According to FAR Part 46.000, Scope of part:

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This part prescribes policies and procedures to ensure that supplies and services acquired under Government contract conform to the contract’s quality and quantity requirements. Included are inspection, acceptance, warranty, and other measures associated with quality requirements.

According to FAR 46.101, Definitions:

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Contract quality requirements means the technical requirements in the contract relating to the quality of the product or service and those contract clauses prescribing inspection, and other quality controls incumbent on the contractor, to assure that the product or service conforms to the contractual requirements.

There is no mention of the inspection of services clause in FAR Subpart 22.10. And as I explained in an earlier post, the Civilian Board of Contract Appeals addressed the notion of applying the FAR guiding principles when interpreting contract clauses and rejected it in short order. Moreover, as the Attorney General opined, the FAR councils have no authority to set policies pertaining to SCA enforcement.

All of the above is why FAR Subpart 22.10 prescribes no policies or rules about CO enforcement of the SCA, but says, in 22.1024:

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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. [Emphasis added.]

DOL has published guidance about "visits to employers." See Fact Sheet #44, https://www.dol.gov/agencies/whd/fact-sheets/44-flsa-visits-to-employers . A CO is not cooperating with DOL by going off and interviewing employees on his or her own nonexistent authority.

A CO's primary responsibility under the SCA is to make a preliminary determination about the applicability of the SCA to a contract, to obtain and include a wage determination in a contract, to administer the conformance process, and to cooperate with the DOL in enforcement.

I think Carl has misinterpreted what happened when he was with the USFS. I think that what happened is that DOL authorized USFS COs to conduct interviews of contractor employees at remote sites, and trained them to do it. I think it was done under the authority of DOL regulations, not the inspection of services clause.

Carl, really. Why won't you just acknowledge that agency head and CO authority is subordinate to DOL authority in this matter. Why not just agree that while COs should take an interest in SCA administration by advising contractors of the crucial importance of compliance and by receiving and reporting concerns and complaints to DOL, they should not go off on their own to conduct interviews of contractor employees or otherwise enforce the SCA without DOL authorization. Is that really so hard for you to do?

Please!

Vern, thanks for the history lesson.

Vern Edwards said:

Is that really so hard for you to do?

Not hard to do at all.  But as I consider your research please tell me where a CO has exceeded their authority to advise the DOL of a concern.

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.

On 6/5/2021 at 4:26 AM, C Culham said:

But as I consider your research please tell me where a CO has exceeded their authority to advise the DOL of a concern.

Carl, please confirm your question. You are asking me, based on the scenario in your post, in what way the CO has exceeded her authority to advise the DOL of her concerns about contractor compliance. Is that right? Her authority to advise the DOL of her concerns?

If that's your question, my answer is: If the CO advises the DOL of what has transpired and her concerns, then she has not exceeded her authority to advise DOL. She is supposed to cooperate with DOL, and that would be a form of cooperation.

Carl: Have you read 29 CFR 4.6(g)? I quote it here for your convenience.

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(g)(1) The contractor and each subcontractor performing work subject to the Act shall make and maintain for 3 years from the completion of the work records containing the information specified in paragraphs (g)(1)(i) through (vi) of this section for each employee subject to the Act and shall make them available for inspection and transcription by authorized representatives of the Wage and Hour Division of the U.S. Department of Labor:

(i) Name and address and social security number of each employee.

(ii) The correct work classification or classifications, rate or rates of monetary wages paid and fringe benefits provided, rate or rates of fringe benefit payments in lieu thereof, and total daily and weekly compensation of each employee.

(iii) The number of daily and weekly hours so worked by each employee.

(iv) Any deductions, rebates, or refunds from the total daily or weekly compensation of each employee.

(v) A list of monetary wages and fringe benefits for those classes of service employees not included in the wage determination attached to this contract but for which such wage rates or fringe benefits have been determined by the interested parties or by the Administrator or authorized representative pursuant to the labor standards clause in paragraph (b) of this section. A copy of the report required by the clause in paragraph (b)(2)(ii) of this section shall be deemed to be such a list.

(vi) Any list of the predecessor contractor's employees which had been furnished to the contractor pursuant to § 4.6(l)(2).

(2) The contractor shall also make available a copy of this contract for inspection or transcription by authorized representatives of the Wage and Hour Division.

(3) Failure to make and maintain or to make available such records for inspection and transcription shall be a violation of the regulations and this contract, and in the case of failure to produce such records, the contracting officer, upon direction of the Department of Labor and notification of the contractor, shall take action to cause suspension of any further payment or advance of funds until such violation ceases.

(4) The contractor shall permit authorized representatives of the Wage and Hour Division to conduct interviews with employees at the worksite during normal working hours.

Note that the requirements of that passage are the same as those in FAR 52.222-41 paragraph (i), although the clause is formatted differently.

Note that both the regulation and the clause require the contractor to disclose records only to, and provide access to employees only by, "authorized representatives" of the DOL Wage and Hour Division.

A CO has no right under regulation or contract to access (a) records or (b) contractor employees, except as authorized by DOL.

On 6/5/2021 at 5:19 AM, Vern Edwards said:

Carl, please confirm your question. You are asking me, based on the scenario in your post, in what way the CO has exceeded her authority to advise the DOL of her concerns about contractor compliance. Is that right? Her authority to advise the DOL of her concerns?

If that's your question, my answer is: If the CO advises the DOL of what has transpired and her concerns, then she has not exceeded her authority to advise DOL. She is supposed to cooperate with DOL, and that would be a form of cooperation.

Thank you

On 6/5/2021 at 7:47 AM, Vern Edwards said:

Have you read 29 CFR 4.6(g)?

Yes.   

I understand the position of many who have responded to my original post in this thread inclusive of yours.   I have not yet waivered my view of contract performance monitoring by a CO with regard to SCA.   My effort is not done with regard to finding something that settles it one way or another in my mind.  As such I am signing off but with the honest hope that I will post a follow-up at some point in the "What Happened"  topic area of Forum.

@C Culham Thanks, Carl.

One last thought: "contract performance monitoring by a CO with regard to SCA" is a little vague.

The issues (disputes) in this and in the prior thread arose from your ideas that (1) COs should, at their own initiative, interview contractor employees to verify that they are being paid the proper wages and fringe benefits, and (2) that a CO's authority to do that was provided by the inspection of services clause, FAR 52.246-4, independent of DOL authorization. To the best of my recollection, those were the primary issues about which there have been disagreements. I do not believe that COs have any authority to interview contractor employees with respect to the SCA except as authorized by the DOL.

I don't recall any disagreement about "monitoring," in the sense of complying with FAR 22.1018, 22.1019, 22.1020, and other such matters. The main issues have been employee interviews and CO authority under the inspection clause to enforce the SCA.

While I am disappointed that you have decided to drop the issues without addressing the points that I have made, I respect your decision to proceed no further, and I do not attribute it to any concession on your part.

Best to you.

Vern Edwards said:

While I am disappointed that you have decided to drop the issues without addressing the points that I have made

I am not dropping the issues.  Again as noted I have taken your points into consideration and I am furthering my efforts outside the Forum.

Vern Edwards said:

The main issues have been employee interviews and CO authority under the inspection clause to enforce the SCA.

You are correct as to the former, but by my recollection without going back and reviewing all my comments with regard to the latter, I believe I have stated, and if I have not, let me say it now.   Enforcement of SCA lies solely in the hands of DOL with the CO doing effort with regard to assurance of performing a contract with regard to all terms and conditions of the contract.  

Vern Edwards said:

concession on your part.

I believe I set a standard of my own with regard to Forum, and quite honestly in life, that if I am dead wrong, off base, or any other part of something that requires concession I will step forward and say so.  My effort for this subject, is to be satisfied in my own mind that I have not put something forth that is wrong mined.  Your references have been an appreciated assist for my effort.

Best to you as well...............

@C CulhamWell, the Forum has a record of what we all have said in the two threads. So if you do come back to this topic in the future, we can all check to see what we said before. I just checked, printed out the thread, and am satisfied.

Best.

On 6/7/2021 at 10:12 AM, Vern Edwards said:

@C CulhamWell, the Forum has a record of what we all have said in the two threads. So if you do come back to this topic in the future, we can all check to see what we said before. I just checked, printed out the thread, and am satisfied.

Best.

Please see my post in "What Happened" Forum subject area.

C Culham said:

Please see my post in "What Happened" Forum subject area.

Thanks, Carl.