SCA Part 3

Thanks, Carl.  I think your exchange validates everyone's viewpoint.  Certainly, it validates mine that DOL (not the contracting officer) has enforcement authority for SCA and that contracting officers have no duty to conduct interviews or otherwise treat SCA contracts like DB contracts.

@C Culham The big debate was mainly about your assertions concerning CO interviews of contractor employees. I don't find your "condensed version" of a telephone conversation with a WH "investigator" to be persuasive of anything. It certainly doesn't "validate" your assertions.

I don't buy that the issues about CO interviews are a "gray area." You said that COs may and must conduct such interviews. I say that a CO is not lawfully or contractually empowered to conduct SCA enforcement interviews of contractor employees except as an authorized representative of the DOL. Nothing in DOL's SCA regulations or the SCA contract clause says anything about interviews by COs, and silence in that regard is neither authorization nor assent.

We debated this for days without resolution. I see no reason for further discussion without new information.

I do appreciate your effort to seek an interpretation from DOL WH. I'm not surprised that you didn't get one in writing.

Vern Edwards said:

@C Culham The big debate was mainly about your assertions concerning CO interviews of contractor employees. I don't find your "condensed version" of a telephone conversation with a WH "investigator" to be persuasive of anything. It certainly doesn't "validate" your assertions.

I don't buy that the issues about CO interviews are a "gray area." You said that COs may and must conduct such interviews. I say that a CO is not lawfully or contractually empowered to conduct SCA enforcement interviews of contractor employees except as an authorized representative of the DOL. Nothing in DOL's SCA regulations or the SCA contract clause says anything about interviews by COs, and silence in that regard is neither authorization nor assent.

We debated this for days without resolution. I see no reason for further discussion without new information.

I do appreciate your effort to seek an interpretation from DOL WH. I'm not surprised that you didn't get one in writing.

 Per regulation DOL has the sole authority to interpret SCA law so I am going with DOL on law and regulation.  As to a contract I am going with my assertion until contract interpretation case law specific to a matter of a SCA interview proves otherwise because up to now I can not find such case law.   

Thanks.  Who knows something in writing might come as the quick turnaround of a phone call was a surprise.

C Culham said:

Per regulation DOL has the sole authority to interpret SCA law...

Please cite that regulation.

I say that the courts can interpret the SCA and that they have the last word.

Under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), which was recently modified by Kisor v. Wilkie, 588 U.S. ___ (2019), the courts defer to the interpretations of statutes by the agencies charged with enforcing them, but the agencies do not have the last word.

The SCA gave the DOL authority to issue regulations and enforce the law. 41 USC 6506 says DOL can make, amend and rescind regulations and make investigations and findings. 41 USC 6507 says DOL can hold hearings and make decisions.

Nowhere does the SCA say that only DOL can interpret the SCA. They must do so, but their interpretations are subject to judicial review.

So, per what regulation does DOL have sole authority to interpret the SCA? Or do you mean that DOL is the only federal agency with authority to conduct investigations, hold hearings, and make SCA enforcement decisions, but that it can call on agencies to assist?

Vern Edwards said:

Please cite that regulation

"The Department of Labor (and not the contracting agencies) has the primary and final authority and responsibility for administering and interpreting the Act, including making determinations of coverage."  29 CFR 4.101

As I said DOL WH has given me an interpretation and until a court via case law provides that interviews are prohibited DOL WH is the authority.  So to be clear Your statement is not a clear interpretation of my position and comments.  One more time...but said with your words....

So, per what regulation does DOL have sole authority to interpret the SCA? 29 CFR 4.101.  Or do you mean that DOL is the only federal agency with authority to conduct investigations, hold hearings, and make SCA enforcement decisions, INTERPRET, **(YES)*but that it can call on agencies to assist? NOT ONLY CALL UPON BUT AGENCIES HAVE AUTHORITY TO CANCEL A CONTRACT.  SCA Section 3 and 29 CFR 4.190  "(a) As provided in section 3 of the Act, where a violation is found of any contract stipulation, the **contract is subject upon written notice to cancellation by the contracting agency****,* whereupon the United States may enter into other contracts or arrangements for the completion of the original contract, charging any additional cost to the original contractor."

So DOL has primary and final authority among agencies, but not sole authority. 29 CFR 4.101(b) says:

Quote

These rulings and interpretations are intended to indicate the construction of the law and regulations which the Department of Labor believes to be correct and which will be followed in the administration of the Act unless and until directed otherwise by Act of Congress or by authoritative ruling of the courts, or if it is concluded upon reexamination of an interpretation that it is incorrect.

And so your statement that "DOL has sole authority to interpret SCA law" was false. A federal court can overrule a DOL interpretation.

Just as I thought. You know, it would have been okay for you to just say that your statement was incomplete. We all make such statements on occasion. All the bull trying to turn it around on me wasn't necessary.

Vern Edwards said:

All the bull trying to turn it around on me wasn't necessary.

It's not bull Vern.  You read my posts to find even the most subtle flaw and I know it.   Sorted all my posts will clearly show that I exclaimed I could not find case law that prohibited an agency from doing interviews.  My admission that case law would trump anything. Therefore, absent case law DOL interpretation is it. I believe the SCA and its implementing regulations support my view.

Carl,

What is your view?

1.  Contracting officers may do wage interviews with SCA contractor employees; 

2. Contracting officers should do wage interviews with SCA contractor employees; or

3. Contracting officers must do wage interviews with SCA contractor employees.

I don't think you're asserting 3., but I lost the bubble on whether you're with 1. or 2.

C Culham said:

You read my posts to find even the most subtle flaw and I know it.

Of course I read your assertive posts looking for flaws! Flaws are incomplete statements, mistatements, misinterpretations, and errors of fact or reasoning. We all have them, which means that I have them and so do you. I read all assertive posts for flaws and often point them out.

If I post something that's flawed I hope and expect that someone will point it out to me, if for no other reason than to keep me straight. And you should hope and expect the same. That part of what's called... let's see... discussion.

Now, after you respond to ji20874, as I know you're going to, please answer this question for me:

You say, and I agree, that agencies have the authority to cancel contracts in response to a violation of the SCA. So if a CO acting on his or her own initiative tries to interview a contractor's employees in order to determine whether the contractor is paying the SCA specified wages and fringes, etc., but does not have a letter of authorization from the DOL, and if the contractor orders the CO not to interview its employees for that purpose and tells them not to answer the CO's questions, can the CO terminate the contract for default?

Please remember that disputes about SCA compliance are not subject to the Contract Disputes Act and to FAR Subpart 33.2. Also, remember that the SCA authorizes only the DOL to investigate, hold hearings, make findings, and make decisions about SCA compliance.

It's a yes or no question. You've had your talk with the DOL WH "investigator," so I assume you can answer with confidence.

By the way, what's the name and number of that investigator? I presume that's public information and that you won't mind if I ask about this matter as you did. You can communicate that privately with me if you like.

We need to get this sorted out once and for all.

C Culham said:

As I said DOL WH has given me an interpretation

Carl, are you considering a telephone discussion with a DoL investigator to be an official interpretation of the SCA or DoL rules?  On what authority did (s)he speak?  Do you consider whatever statements the investigator made to you, binding on DoL as a whole or were they merely his/her opinions?

ji20874 said:

Carl,

What is your view?

1.  Contracting officers may do wage interviews with SCA contractor employees; 

2. Contracting officers should do wage interviews with SCA contractor employees; or

3. Contracting officers must do wage interviews with SCA contractor employees.

I don't think you're asserting 3., but I lost the bubble on whether you're with 1. or 2.

I and 2....3 is discreation left to the CO principles of good faith and fair dealing.  Me I did back when as I felt a must sometimes to protect the best interest of the employee(s) and the Government.

Vern Edwards said:

please answer this question for me:

Well you asked two so which one?  Wait never mind I won't look for flaws I will be fair.

Vern Edwards said:

You say, and I agree, that agencies have the authority to cancel contracts in response to a violation of the SCA. So if a CO acting on his or her own initiative tries to interview a contractor's employees in order to determine whether the contractor is paying the SCA specified wages and fringes, etc., but does not have a letter of authorization from the DOL, and if the contractor orders the CO not to interview its employees for that purpose and tells them not to answer the CO's questions, can the CO terminate the contract for default?

Its not yes or no and you know it.

I would need to do extensive DOL case law review but my honest inclination is it would not be a T4D but a cancellation appealable to DOL.

Maybe a mixed bag T4D/Cacellation??

Anyways I know you have the answer so please share otherwise you would not of asked.  This is request I hope you can honor!

Vern Edwards said:

By the way, what's the name and number of that investigator?

As I noted I would share.  Coming your way soon.   I hope you don't attempt to discredit him as you have stated you want to do with me!

More?   Keep them coming!

Retreadfed said:

Carl, are you considering a telephone discussion with a DoL investigator to be an official interpretation of the SCA or DoL rules?  On what authority did (s)he speak?  Do you consider whatever statements the investigator made to you, binding on DoL as a whole or were they merely his/her opinions?

You bet I am based on it being a direct response to a letter I wrote asking for an interpretation.   

Come on Retreadfed why wouldn't I?

On 6/25/2021 at 1:09 PM, C Culham said:

I and 2....3 is discreation left to the CO principles of good faith and fair dealing.  Me I did back when as I felt a must sometimes to protect the best interest of the employee(s) and the Government.

I might be okay with 1 (may), but we differ on 2 (should) and 3 (must).  As a contracting officer, I am comfortable with referring any concerns I might have to DOL, and I will never feel that I should or must do SCA wage interviews as a general proposition -- the Forest Service situation is an exception to the general proposition, and there, it is driven by the agency head.  

DB is a whole different matter.

ji20874 said:

Forest Service

I used it as a comparative example.  In my practice as a CO for USDA, NRCS & Forest Service; USACE; HHS,PHS,IHS; and SBA I did as noted.

To each their own.

C Culham said:

Come on Retreadfed why wouldn't I?

What authority did the investigator have to give you an authoritative interpretation of the SCA and DoL rules?  Do you really think that informal discussions with an investigator of some unknown rank  constitute an interpretation of the SCA and DoL regulations that represent the views of the Secretary of Labor that would be formulated after proper and complete staffing of the question?

Retreadfed said:

What authority did the investigator have to give you an authoritative interpretation of the SCA and DoL rules?  Do you really think that informal discussions with an investigator of some unknown rank  constitute an interpretation of the SCA and DoL regulations that represent the views of the Secretary of Labor that would be formulated after proper and complete staffing of the question?

His badge!

Seriously what did you need as a CO to verify authority of GAO. IG, FBI or other investigative officer to trust them.

I took away my smiley face but I remain amazed at your pursuit of questioning a direct response I got in a letter written to the Administrstor of DOL WH.

C Culham said:

You bet I am based on it being a direct response to a letter I wrote asking for an interpretation.

Post your letter here, please.

C Culham said:

I would need to do extensive DOL case law review but my honest inclination is it would not be a T4D but a cancellation appealable to DOL.

Is a cancellation different from a termination for default? If so, what's the difference?

That's really a question, not a challenge. I have thought that the use of the word "cancellation" was just a quirk of the statute. If there is a difference I want to learn about it.

Here's what 52.222-41 says, at paragraph (k):

Quote

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.

Here's 29 CFR 4.190(a):

Quote

As provided in section 3 of the Act, where a violation is found of any contract stipulation, the contract is subject upon written notice to cancellation by the contracting agency, whereupon the United States may enter into other contracts or arrangements for the completion of the original contract, charging any additional cost to the original contractor.

I think cancellation and termination are the same thing. Am I wrong?

Vern Edwards said:

Is a cancellation different from a termination for default? If so, what's the difference?

That's really a question, not a challenge. I have thought that the use of the word "cancellation" was just a quirk of the statute. If there is a difference I want to learn about it.

Here's what 52.222-41 says, at paragraph (k):

Here's 29 CFR 4.190(a):

I think cancellation and termination are the same thing. Am I wrong?

Not worried about right or wrong but my thoughts.

T4D has many tentacles, first to mind is partial, the settlement stuff, and on.   A cancellation and allowed government action per statute reads more fatal to me.  DOL hearing records would clarify I am sure.

C Culham said:

Seriously what did you need as a CO to verify authority of GAO. IG, FBI or other investigative officer to trust them.

Who said I trusted them?  I got IG personnel lying to our agency head.  Also, I dealt with Federal criminal investigators frequently, and I know their credo was we thrive on suspicion, rumor and innuendo.

I think you are placing to much trust in your telephone call.  I would not take what I was told as anything other than his/her personal views.

C Culham said:

T4D has many tentacles, first to mind is partial, the settlement stuff, and on.   A cancellation and allowed government action per statute reads more fatal to me.  DOL hearing records would clarify I am sure.

May I interpret that to mean that you don't know whether termination and cancellation are different?

Vern Edwards said:

May I interpret that to mean that you don't know whether termination and cancellation are different?

Possibly in the context of SCA statute and regulation.  A conclusion not inconsistent with our discussion regarding interviews.

C Culham said:

Possibly in the context of SCA statute and regulation.  A conclusion not inconsistent with our discussion regarding interviews.

So you don't know whether termination and cancellation are different. Thanks.

You have no idea how helpful you're being.

Retreadfed said:

What authority did the investigator have to give you an authoritative interpretation of the SCA and DoL rules?  Do you really think that informal discussions with an investigator of some unknown rank  constitute an interpretation of the SCA and DoL regulations that represent the views of the Secretary of Labor that would be formulated after proper and complete staffing of the question?

I have given you my position.  I trust in the response.  You?  What ever you want.

I will say all references and the discussion gave me confidence.  Don't like it then you do it on your own.  Get back to me when you do I will be waiting.

Thank you.

Vern Edwards said:

Post your letter here, please.

Let me confer with counsel first.  I might be compelled to include a disclaimer just as I would in a private message to you.   Not a duck and dive any private message to me will be responded to.

Additionally I am out of town as I posted so it would not be until next week.

The inferences of trust in this is tread are becoming another mind boggling affair!   Wow!

All I can say about this and the other two threads is “wow.”  In just about every office I know, people are overworked and understaffed.  COs are swamped.  Why get into this issue when there are so many higher priorities?  If a CO feels a contractor is in violation, just notify DOL.  That’s their job.  At best, this is a real stretch if it’s even the COs concern.  

I’m sure there are lots more pressing issues for COs to devote their time - like assisting program offices in preparing documents, quit taking shortcuts such as forcing LPTA and avoiding discussions, and self education.

C Culham said:

The inferences of trust in this is tread are becoming another mind boggling affair!   Wow!

The only reason that I'm engaging you about this topic is because of something you said in response to a post from ji20874 on May 16.

On that day Joel posted,

Quote

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.

and ji20874 posted this in response,

Quote

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.

to which you responded,

Quote

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. [Emphasis added.]

And you considered the OP's client to be a dirtbag. 

ji20874 responded with this, in part:

Quote

Wrong.  And also unfair.

and went on to defend himself. After that you went into what is your typical rain dance of who-said-what-in-what-post—dissembling, denying, finger-pointing, and insisting, and writing crappy, sometimes incoherent sentences. And you did it all in the Beginner's Forum, of all places, where many readers don't know enough to know who is right and how to assess the evidence on each side.

I respect your knowledge, experience, and passion for the work, but I was angered by what you said in those May 16 posts. And I don't respect you for going on and on and being doggedly insistent in the face of contrary evidence from several sources, and contrary arguments from several very experienced Wifcon members of long standing, that you are wrong to claim that CO's have independent authority under the Inspection of Services clause and pursuant to the FAR guiding principles to conduct employee interviews, and a duty to do so, which no statute, regulation, or contract clause expressly or impliedly empowers them to do except as authorized agents of the DOL.

What you have asserted in these threads is significant departure from the plain language of statute and regulation and from long-standing practice. I do not accept anything you say about some "interpretation" you say you got from some DOL "inspector" in response to some letter which we have not seen. A gracious colleague would long since have said, simply, "In light of so much opposition from so many respected persons, perhaps I'm wrong. I'll think more about it and do some research," and let it go at that. You had a bad experience when you were with the Forest Service, and it has thrown you off your bearings. It was a mistake to post to What happened? You should have let it drop.

You owe everyone an apology, but especially ji20874. As soon as you make it, I'll apologize for being irrascible and intemperate.

I will still look forward to reading your posts about other matters.

Vern Edwards said:

You should have let it drop.

Your most recent post is why I can not.  Moreover in Beginners Forum is a perfect place after the long road of the three threads.

First and foremost you attribute words to me that are not true and never written by me.  Your penchant and admission to discredit me with untrue  statements continues regardless of what you might further write.

You also take editorial freedom in representing what was written to continue a one-sided biased view that you want others to believe of me.

And you attacked my very being (mental state) with no first hand knowledge. 

As to the matter of interviews I will simply repeat the informed interpretation of the DOL WH that I received - Interviews regarding SCA by other than DOL, while not expected by DOL, are not prohibited. To this I will add that in the case of a actions by a contractor that suggest egregious violations of SCA it is my position that a CO's responsibility will guide whether they would do interviews or not.

To Beginners the foregoing is a clear demonstration of the leadership that is often noted in WIFCON.  That is one can provide all the references and research they want to support a position under the FAR guiding principles but in the end it won't matter.  What will be done instead is whatever is demanded and facts are lost.  Not unlike the entirety of the three threads of this discussion it narrows to a battle of personalities where leadership bends towards discredit that may be detrimental to a career.

Luckily I have no fear of that but my professionalism and person has been challenged with untruths and twisted facts and I will not accept it for a minute.

On this I am asking that this thread be closed.

All:

I wrote the following letter to the DOL Wage and Hour Division:

Quote

Dear Mr. __________,

I have a question about the administration of the Service Contract Act under a Government contract.

According to Department of Labor regulation 29 CFR 4.6(g)(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.”

See also the contract clause at 48 CFR 52.222-41, Service Contract Labor Standards (August 2018), paragraph (i)(4), which says the same thing.

I can find nothing in the regulation or the contract clause that requires a contractor to permit an agency contracting officer to interview its employees at his or her own initiative and without authorization by the Department of Labor Wage and Hour Division. Nor can I find anything in the regulation or clause stating that an agency contracting officer is an authorized representative of the Department of Labor Wage and Hour Division by virtue of his or her position.

Thus, my question is as follows:

Pursuant to 29 CFR 4.6(g)(4) or 48 CFR 52.222-41, must a contractor permit an agency contracting officer to interview its employees at his or her own initiative and without evidence that he or she is an authorized representative of the Wage and Hour Division?

My reason for asking is concern that (1) a contracting officer be properly trained and deputized to conduct such interviews and (2) to preserve contractual rights and comply with regulatory and contractual obligations.

Thank you for your kind consideration.

Sincerely,

Vernon J. Edwards

I received the following response from a DOL regional office today:

Quote

Mr. Edwards. I’ve run your Q by our Senior Policy Analyst for SCA at our National Office as well as our Regional Enforcement Coordinator for Government contracts. In this situation DOL wouldn’t tell an contract agency what they can or cannot do while administrating their SCA contracts. While we may enlist the assistance of contracting agencies to help us at times with employee interviews, we don’t deputize contracting folks and we are not the arbiter of this issue.  I’m aware of situations where the contracting agency has in fact conducted employee interviews on SCA contracts. We’re not going to tell a Contracting Agency they cannot interview workers, who  are working on their SCA contracts.

 As it regards your concern of ‘preserve contractual rights and comply with regulatory and contractual obligations’, those rights are still preserved as DOL can discuss concerns with both parties should there be a Q abt SCA compliance derived from SCA interviews and if there were apparent compliance issues, DOL could conduct an SCA investigation to insure regulatory and contractual obligations.

 In the end we see an agency conducting employee interviews of this nature as a compliance tool to insure contractor compliance and to give DOL enforcement options should there be Q abt SCA compliance arising from ee statements.

The person who signed the response identified themself as: "Senior Investigator Advisor."

I do not believe the DOL response answered my question, which was:

Quote

Pursuant to 29 CFR 4.6(g)(4) or 48 CFR 52.222-41, must a contractor permit an agency contracting officer to interview its employees at his or her own initiative and without evidence that he or she is an authorized representative of the Wage and Hour Division?

Basically, the DOL response is "We won't tell an agency what it can or cannot do." That response does not seem to me to be consistent with the plain language of either 29 CFR 4.6(g)(4) or FAR 52.222-41(i)(4). However, it is clear to me that it's the only response I am going to get under the circumstances.

I was told orally that CO-initiated interviews are rare. The only agency mentioned by the DOL rep was the Forest Service, but I did not inquire about other agencies.

I think the DOL response lends support to C Culham's general take on the issue, but that it does not support his specific arguments and conclusions about the CO's authority.

That's all I could learn. Such are the ways of bureaucracy.

Once again I am personally compelled to post as I believe context is missing.  This has no intent of getting the last word in but to respond directly to my argument and conclusion about SCA interviews by a CO.

My interpretation, and position, on the issue of SCA interviews was and is that, absent a specific agency policy or regulation, there is no prohibition against a CO doing SCA interviews stated in USDOL regulations, FAR Clauses and/or case law and as such a CO may do interviews.

Two independent formal requests to USDOL and response to those requests, both formal and anecdotal, support my interpretation.  I am confident in the USDOL responses and believe that USDOL is the final authority on the matter pursuant to 29 CFR 4.101(g) which is referenced below with emphasis added. 

I am confident in the USDOL responses as both were sought independently and  responses came from representative authority required by the regulations of the USDOL.   Specifically, 29 CFR 4.101(g) which is referenced below with emphasis added.  A response from a "Senior Compliance Specialist" at the the WDC level and a response from a regional Senior Investigator Advisor that references WDC input meet the standard of 29 CFR in solving doubt about a matter of SCA interpretation. 

As has be repeated in this thread and threads that preceded it the matter of interpretation is viewed differently by others and that is their prerogative.   I will however continue to subscribe to mine especially when USDOL, pursuant to their authority, has not disagreed with it.  

"29 CFR 4.101(g) It should not be assumed that the lack of discussion of a particular subject in this subpart indicates the adoption of any particular position by the Department of Labor with respect to such matter or to constitute an interpretation, practice, or enforcement policy. If doubt arises or a question exists, inquiries with respect to matters other than safety and health standards should be directed to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210, or any regional office of the Wage and Hour Division...."