GSA issued TO with Contract Office stating SCA is not applicable, but vendors have SCA applicable LCATs

It’s hard for anybody here to answer without seeing things like the ordering agency SOW.  Perhaps the ordering agency contracting officer feels the nature of the work doesn’t utilize SCA covered employees?  If you are uncomfortable with the issue, ask the CO.  You could email and use the response to document your file.

However it’s difficult to imagine categories like word processors, support staff, and clerks being anything other than SCA covered.

On 12/29/2021 at 8:07 AM, CuriousContractor_22 said:

Since the agency says SCA is not applicable on the task order due to the "bona fide executive, administrative, or professional employees" assumptions,

A few thoughts -

A contractor has the ultimate responsibility for compliance with SCA.   An agency may assume some type of staffing yet the contractor is the one that makes the final decision as to what an employee may or may not be doing, how they are paid etc.   This may help on what the tests are for a contractor to determine exemption - https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fs17c_administrative.pdf 

Also do not forget about this document that assists a contractor in determining applicability of SCA as well - https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/SCADirectVers5.pdf  In fact if you read some of the GSA FSS schedules many contractors have positions described that appear to be in direct correlation to the position described in the Directory.

Also consider FAR 22.1015.  However as a contractor I would not depend on this citation as a hoped for bail out because as noted it is really the contractor's ultimate responsibility to comply with SCA.

As to more info another missing link is with regard to the GSA schedule itself.  What are the clauses in it besides the SCA 52.222-41 such as 52.222-52 & 53.  

And finally for the heck of it I will throw this out as a reference.   You might find it handy - https://www.dol.gov/agencies/whd/field-operations-handbook/Chapter-14#B14c00

This helps explain why GSA incorporates Wage Determinations under their contract.  They don’t know specifics of what agencies will order.  So task orders may or may not be subject to the SCA

https://www.gsa.gov/cdnstatic/Service_Contract_Labor_Standards_and_GSA_Schedule_Orders.pdf

Is the principal purpose of the contract and/or the task order to furnish services in the United States through the use of service employees?  This is the acid test for SCA applicability -- not the irrelevant fact that a word processor or clerk will be used somewhere during performance.

What @ji20874 posted with it recommended to read FAR 22.1003-1 for clarity.

On 12/29/2021 at 8:07 AM, CuriousContractor_22 said:

I have seen agencies issue task orders under GSA schedules and state the task order it is not SCA applicable because they believe all employees will be bona fide executive, administrative or professional employees... Since the agency says SCA is not applicable on the task order due to the "bona fide executive, administrative, or professional employees" assumptions, is the contractor supposed to ignore their SCA wage determinations?

I presume that question is about GSA FSS contracts. I don't know much about them anymore, but I believe that they are all IDIQ contracts and contain the clause at FAR 52.216-18, Ordering, which says in part:

Quote

(b) All delivery orders or task orders are subject to the terms and conditions of this contract. In the event of conflict between a delivery order or task order and this contract, the contract shall control.

Based on that clause, it seems to me that if a GSA FSS contract contains the SCA clause at FAR 52.222-41, then all orders issued thereunder are "subject to" the clause, unless the contract states otherwise based on an authorized FAR deviation. I haven't seen anything in FAR to the contrary. I have not checked the GSAR.

It may be that somewhere in GSA's myriad policies and procedures or in some special clause in its FSS contracts that the FAR 22.1003-1 principal "contract" purpose test applies on an order-by-order basis, and that an order is thus not "subject to" the SCA clause if the ordering CO determines that the order does not meet the SCA applicability criteria. I don't know. But I sure as heck wouldn't accept some agency's assertion to that effect or something posted to some website. I would demand to be shown where it says that in the contract. If it doesn't say that in the contract, then my initial position would be that the agency is wrong.

Of course, if an order does not entail performance of any work by any "service employees," then, while the order is still "subject to" the SCA clause, there is no one to be compensated in accordance with the clause.

Contractors cannot trust what they are told by government personnel, orally or in writing, about the applicability or interpretation of laws and regulations, and they can't trust all website information. They must independently verify. If after award the agency turns out to have been wrong, you might have serious trouble.

Vern Edwards has brought up good points.   Added are.....

• If an order had a mix whereby the agency indicates application of wage rates to some positions and not to others it might be that the  "not" positions should be sought as  "open market" positions.  I would have to think on this a little more but it is my first reaction.  https://interact.gsa.gov/blog/open-market-items 
• I think it is appropriate to throw in willing contractors on the trust matter especially with regard to what a contractor is willing to do under the GSA FSS. After all they should know the do's and don'ts of the contract .   Are they willing to bend the rule of the contract to get an order?   Probably depends on the contractor but my bet is that it happens.  And I would bet the same contractor who in turn might yell "Foul" if it wasn't to their benefit.   It does take "Two to tango".   Appropriate or not it seems Federal government contracting these days fits “It's Easier to Ask Forgiveness Than It Is To Get Permission”

Vern Edwards said:

I presume that question is about GSA FSS contracts. I don't know much about them anymore, but I believe that they are all IDIQ contracts and contain the clause at FAR 52.216-18, Ordering, which says in part:

Based on that clause, it seems to me that if a GSA FSS contract contains the SCA clause at FAR 52.222-41, then all orders issued thereunder are "subject to" the clause, unless the contract states otherwise based on an authorized FAR deviation. I haven't seen anything in FAR to the contrary. I have not checked the GSAR.

It may be that somewhere in GSA's myriad policies and procedures or in some special clause in its FSS contracts that the FAR 22.1003-1 principal "contract" purpose test applies on an order-by-order basis, and that an order is thus not "subject to" the SCA clause if the ordering CO determines that the order does not meet the SCA applicability criteria. I don't know.

The GSA link I cited above covers this.  It says while GSA includes the SCA clauses and wage determinations into the contract for various labor categories, the ordering contracting officer determines whether the SCA applies to the task order and labor categories when they place the order.  I’m still using SCA out of habit instead of SCLS.

formerfed said:

The GSA link I cited above covers this.  It says while GSA includes the SCA clauses and wage determinations into the contract for various labor categories, the ordering contracting officer determines whether the SCA applies to the task order and labor categories when they place the order.  I’m still using SCA out of habit instead of SCLS.

@formerfedI saw that GSA link, but I don't accept it as authoritative, and I do not trust it. Why should I? It is inconsistent with FAR 52.216-18(b), and it does not cite an FSS contract clause or a GSA or DOL regulation that expressly provides for the procedure it describes.

@formerfedThe "are subject to" provision of FAR 52.216-18(b) has been invoked in 37 board of contract appeals decisions, five Court of Federal Claims decisions, six Federal Circuit decisions, and in one amicus curiae brief submitted to the Supreme Court. If the government is going to write such clauses, it should conduct its affairs in strict conformity with their terms—no "innovative" shortcut screwing around. In short, it should obey its own #@&&!* rules and communicate clearly about exceptions and deviations!

@Vern Edwards I remembered something from a couple years.  Labor responded to a GSA question on whether the SCA applied to a government wide IDIQ contract for telecommunication services.  One of the exceptions of the SCA is services subject to the Communications Act.  While not the same thing as discussed here, the interesting point is DOL said “…task orders are the ‘official contractual mechanism’ agencies use for ordering services…”

https://interact.gsa.gov/sites/default/files/EIS Bulletin Volume 14 v1.0 (11.18.20).docx

The response goes on the say agencies must evaluate applicability at the task order level.  What’s funny is it took DOL a year to reply.

GSA could do everyone, contractors included, a service if they simply were clear about these issues and address them in solicitations and contracts.

I searched more and couldn’t find anything else.

formerfed said:

I remembered something from a couple years.  Labor responded to a GSA question on whether the SCA applied to a government wide IDIQ contract for telecommunication services.  One of the exceptions of the SCA is services subject to the Communications Act.  While not the same thing as discussed here, the interesting point is DOL said “…task orders are the ‘official contractual mechanism’ agencies use for ordering services…”

@formerfedThe DOL's rules for implementation of the Service Contract Act are in 29 CFR part 4, Labor Standards for Federal Service Contracts. I searched that regulation for any mention of the word "order." The word appears 105 times. I looked at each and every mention. None of those mentions refer to delivery orders or task orders. In fact, the phrase "task order" does not appear anywhere in 29 CFR. In short, I found nothing, NOTHING, in DOL's official rules that support what it supposedly said to GSA.

@Contractors—Don't trust what government personnel say about rules that cannot back up by citing regulation, contract, and authoritative interpretation. Informal communications, such as the ones cited by formerfed, are worthless in my opinion. If you rely on them and they turn out to be wrong, they will not provide you with a reliable defense.

The United States has created a system of procurement rules—statutes (positive and nonpositive law), executive orders, regulations, policies, handbooks, website postings, and case law—so voluminous, badly written, convoluted, and complex that no one fully understands all of it or even a substantial part of it. It's madness.

If you have a question about what a law, regulation, or contract clause requires of you, and if you are potentially at risk of noncompliance, then consult an attorney who practices in that field. Get a legal opinion. Then keep your fingers crossed. Most contractors don't get into serious trouble when they break a rule, because no one spots it or does anything about it. But every now and then...

It's too bad that it is this way, but that's the system our government has created.

On 12/29/2021 at 8:07 AM, CuriousContractor_22 said:

I have seen agencies issue task orders under GSA schedules and state the task order it is not SCA applicable because they believe all employees will be bona fide executive, administrative or professional employees.

Vern Edwards said:

Don't trust what government personnel say about rules

In an attempt add clarity let me offer this.  The "rules" are dictated by the GSA FSS contract.

"Service Contract Labor Standards (SCLS) Schedule contracts contain both SCLS and non-SCLS labor categories. Bona-fide executive, administrative, and professional labor categories are exempt from the SCLS. GSA has applied the SCLS at the Schedule-contract level where applicable. OCOs may order, as ancillary support, any labor typically found in the Department of Labor’s “Service Contract Act Directory of Occupations” if this labor is deemed necessary to deliver a total mission solution integrated across professional disciplines and/or the enterprise. In this situation, it is the responsibility of the OCO to ensure the SCA is properly applied and administered to any non-Schedule labor categories."  (emphasis added)  REF - https://www.gsa.gov/cdnstatic/MAS_Ordering_Quick_Reference_Guide_FINAL_508.pdf 

In other words a GSA FSS contract with a particular contractor has pricing by labor category.  For each labor category priced GSA has applied SCLS or in other words determined if the labor category is SCLS applicable or not.  

An Ordering Contracting Officer (OCO) errs in stating that the categories are or are not exempt as GSA has already done so.  In an "Order"  quote the GSA FSS contractor will propose labor categories and their respective pricing to get the work done.  The OCO has no authority to suggest the category is this or that with regard to SCLS, as noted this has already been done at the GSA FSS contract level.    

If a OCO asks for a labor category not priced in the contractor's particular GSA FSS it is a non-Schedule (open market) labor category.

To understand this further consider the following wording from the current solicitation on the street for various categories/SINS for GSA FSS.  Go here https://sam.gov/opp/ec77a8ef4af24c229fc199cb96af7f55/view and wade through as I did and you will find this language in the "Office Management_Attachment" document.   By comparison I suggest a look see at "Information Technology_Attachment" document as I think it will open eyes that a CO can not just willy nilly suggest SCA does not apply, again GSA has already done so.  (PS Hint - search all documents you might download from the solicitation site  on the term "SCLS")

"Service Contract Labor Standards and Health and Welfare: The Service Contract Labor Standards (SCLS) applies to all nonprofessional services to be provided under this Schedule except for any pricing offered for services outside of the United States. The SCLS index of applicable wage determinations can be viewed at beta.sam.gov. Some of the proposed labor categories may be subject to the SCLS (usually nonprofessional categories). As such, the Offeror should verify that its proposed base rates and fringe benefit rates for these labor categories meet or exceed the SCLS wage determination rates and fringe benefits for the areas included in the geographic scope of the contract (i.e., nationwide). SCLS wage determination(s), including determination number, revision date, state and counties for the preponderance of work location must be submitted. *When submitting Labor Categories subject to SCLS Wage Determination (WD), the offeror is required to provide rates for their intended places of performance along with any supporting documentation. The offeror should indicate any differences in WD base rates for proposal pricing, for instance if Accounting Clerk I is being proposed for a lower WD base rate than Janitor, the appropriate WD should be indicated. The contractor is responsible to adjust their proposal and for paying the appropriate WD for the locality for the intended performance local. Offerors must comply with applicable SCLS wage determination rates and fringe benefits regardless of the price proposed and awarded on any resultant Schedule contract. The Offeror may be required to submit supporting documentation for the proposed rates that will allow the contracting officer to conduct a cost analysis to determine that offered prices are fair and reasonable. Schedule contractors must comply with the base rate and fringe benefit rate requirements of the prevailing rate SCLS Wage Determination (WD) Revision Number currently incorporated into the GSA Schedule contract. No prevailing rate WD may be incorporated into a task order as the order may then be in conflict with the Schedule contract terms and conditions."

C Culham said:

In an attempt add clarity let me offer this.  The "rules" are dictated by the GSA FSS contract.

Not quite.

Generally, there is a hierarchy of rules, starting with statutes, then regulations (in the case of the SCA, DOL, then FAR, then FAR Supps). Contract terms implement those rules. If the terms of a contract are inconsistent with a higher-level rule, a court or board of contract appeals is likely to toss or ignore the contract terms. Contract deviations must be properly authorized.

See Nash et al., Formation of Government Contracts, 4th ed., II. Contracting Powers, C. Contracts Varying from Statutory or Regulatory Requirements, pp. 69 - 81.

Vern Edwards said:

Not quite.

Generally, there is a hierarchy of rules, starting with statutes, then regulations (in the case of the SCA, DOL, then FAR, then FAR Supps). Contract terms implement those rules. If the terms of a contract are inconsistent with a higher-level rule, a court or board of contract appeals is likely to toss or ignore the contract terms. Contract deviations must be properly authorized.

See Nash et al., Formation of Government Contracts, 4th ed., II. Contracting Powers, C. Contracts Varying from Statutory or Regulatory Requirements, pp. 69 - 81.

Okay so I mis-spoke but in the case of the matter raised in this thread GSA's FSS solicitation process and wording in finalized contract(s) is consistent with the rules.  Any way you cut it the implied actions by the "agencies" that the OP references are not consistent with the rules and the contract.

C Culham said:

GSA's FSS solicitation process and wording in finalized contract(s) is consistent with the rules.

If you say so. I don't know.

I haven't participated in or studied that process, and I haven't studied the contract in question. Apparently, you have done those things.

Just now, Vern Edwards said:

If you say so. I don't know.

I haven't participated in or studied that process, and I haven't studied the contract in question. Apparently, you have done those things.

The process yes, but not "the contract" as by my read I could not pinpoint a specific contract mentioned by the OP.   The OP's stated questions appeared to be in general with regard to GSA schedule contracts and SCA.

GSAs position is they have no idea what agency requirements are and what task orders might look like.  Therefore they don’t know when and where the SCA applies to individual agency requirements.  

They decided the best approach is to establish rates for some labor categories assuming the SCA applies but also knowing those same labor categories might not apply in all situations.  Their FSS contracts then are awarded on the basis of SCA coverage. That leaves agency contracting officers the latitude to decide if the required work is SCA based or not and how to proceed.  

formerfed said:

GSAs position is they have no idea what agency requirements are and what task orders might look like.  Therefore they don’t know when and where the SCA applies to individual agency requirements.  

They decided the best approach is to establish rates for some labor categories assuming the SCA applies but also knowing those same labor categories might not apply in all situations.  Their FSS contracts then are awarded on the basis of SCA coverage. That leaves agency contracting officers the latitude to decide if the required work is SCA based or not and how to proceed.

This seems converse to the references I have posted.   GSA solicitations request contractors to provide rates that meet SCA.  GSA contracts say SCA applies.  Additionally GSA instructions on use of schedules indicate that GSA has evaluated schedule hourly rates with regard to application of SCA.

I will agree that agencies are allowed latitude in negotiating more favorable rates, which might include whether a labor category price could be reduced but their instructions imply that such a category, where SCA is determined to not apply, is a non-schedule labor category.  

Example - GSA solicits pricing.  Contractor says here are my rates and for these labor categories SCA applies and for these , exemption applies.   GSA evaluates and agrees or disagrees, negotiates as appropriate and the rates become the schedule pricing.  Yet the labor category is determined to be applicable to SCA or exempted under SCA.   A labor category can not have it both ways, sometimes SCA and sometimes not.  I say this with the reminder that the SCA Directory of Occupations determines the labor category to which SCA applies.   If the tests for SCA exemption for administrative, clerical and professional apply GSA would have already determined that pursuant to SCA.  I view exemption as different than not applicable as the exemption is part of SCA.   

You referenced information regarding IT positions in a previous post.   Consider this from the current GSA solicitation on the street.....

Cloud related IT professional labor categories are within scope of this SIN. Cloud related IT professional labor categories are not subject to adherence to the NIST definition of cloud computing; therefore, no technical response is required for a labor proposal. Non-professional labor categories subject to Service Contract Labor Standards (SCLS) (e.g., IT help desk support) that are incidental to and used solely to support specific Cloud related IT professional labor categories and/or fixed-price professional services solutions must be offered under a different SIN that specifically covers the proposed services.

Or in other words if an entity needed non-professional labor categories for IT they would go to another GSA FSS SIN to get them.

@formerfed

I just stumbled on this.  No intent to pile on.  Do not even know if it is the most current case law.  Just thought it was interesting.  Maybe the best advice to the OP is that if they were to encounter the situation portrayed on a specific contract action they may want to ask the GSA CO if the agency is doing something correct with regard to SCA.

https://www.cbca.gov/files/decisions/2017/O'ROURKE_03-31-17_5458__CONSULTIS_OF_SAN_ANTONIO_INC.pdf

C Culham said:

A labor category can not have it both ways, sometimes SCA and sometimes not.

C Culham:  Respectfully, your first post included a link to the DOL Field Operations Handbook Chapter 14. One of the exemptions and exclusions listed at 14c07, states: “…For example, a contract for professional services performed essentially by bona fide professional employees, with the use of service employees being only a minor factor in contract performance, is not covered by the SCA...” Paragraph (b) of that section mentions a 10 to 20 percent guideline to determine whether there is more than a minor use of service employees.  As an example, if I were performing a study which ordered 900 hours of engineering services, and the report required 100 hours of a clerk-typist; it seems as though the clerk-typist would be exempt from SCLS.  But if that same study required 750 hours of engineering services and 250 hours of a clerk typist, then clerk-typist would not be exempt.  Agree... disagree?

Is the following plausible?

1. The SCLS applies to contracts, as prescribed by the SCA, DOL regulations, and FAR 22.1003.  The key applicability rule is the "principle purpose test" prescribed by FAR 22.1003-1.

2. Under contract, the SCLS are implemented by the SCLS clause, FAR 52.222-41.

3. The statute, regulations, and contract clause require that contractors compensate and manage a specific category of contract workers in certain ways. That specific category of workers is referred to and defined in 29 CFR 4.113(b) as "service employees," of which there are many different classifications.

4. By ordinary standards of contract interpretation, if an agency issues an IDIQ contract that includes the SCLS clause, then pursuant to FAR 52.216-18(b), each task order is "subject to" the clause, no matter what its principle purpose. Nothing I could find in 29 CFR part 4, FAR Subpart 22.10, or FAR 52.222-41 provides for application of the principle purpose test to individual task orders. Did I miss something?

5. Thus, assuming I haven't missed something, under an IDIQ contract containing FAR 52.222-41, under an individual task order that requires work primarily by professionals but requires support by service employees, the contractor would have to compensate and manage the service employees in accordance with FAR 52.222-41. It doesn't matter that the principle purpose of of the task order is to obtain the services of professionals, because all orders are "subject to" FAR 52.222-41. In other words, under a contract subject to FAR 52.222-41, service employees are to be compensated and managed in  accordance with FAR 52.222-41, regardless of the task order to which they have been assigned. The clause applies to the contract as a whole.

6. But an agency could issue an IDIQ contract with one line item for task orders primarily for professional services, not subject to the SCLS and with a clause set that does not include FAR 52.222-41, and one line item for task orders primarily for the services of service employees, subject to the SCLS and with a clause set that does include 52.222-41. See my Briefing Paper on contract line items, which is posted at Wifcon in Articles. In that case, FAR 52.216-18(b) would be interpreted and applied accordingly. Then, service employees working under a professional services task to which 52.222-41 does not apply would not be covered by the clause, while service employees working under a service employee task would be covered.

Plausible?

Quote

A labor category can not have it both ways, sometimes SCA and sometimes not.

Sure it can at least in the context discussed here.  An ordering agency has a task order requirement.  The agency decides the work involved.  A contractor responds with a proposal that includes one or more labor categories and associated rates.  It’s not the labor title that decides whether the work is exempt or not.

This frequently happens with IT services.  Several job titles such as system analysts, developers and programmers are covered by Wage Determinations.  The exact nature of the work performed determines if the work is SCA covered and not the job title.  The key thing is contractors are proposing using contract categories and rates and in response to an agency need.

Vel said:

Agree... disagree?

Agree.  However I would offer this is a complicated discussion in that there is the general standards of SCA and then there is the specific standards as related to a GSA FSS.  Along the same thoughts that Vern has brought up in his most recent post and using some general references that I have already noted (remember the OP has not pinpointed a specific GSA FSS contract).....

GSA requires a contractor to provide information during the solicitation process as I have previously noted.  I directed attention to a solicitation via link currently out on the street.  Here is another excerpt from it (in italics at the very end of my comments and question).   I know I am cherry picking but I am trying to keep my post as brief as possible.  I also want to note that if you look at the referenced solicitation, and as I already noted in a previous post, with regard to a specific SIN GSA does not require SCA compliance info.  Again I quote the language with regard to IT - "Cloud related IT professional labor categories are not subject to adherence to the NIST definition of cloud computing; therefore, no technical response is required for a labor proposal."

So in consideration of the below quote the question loops back to you, considering what GSA asks for with regard to compliance to SCA in the solicitation/contract   in establishing pricing for a specific labor category (CLIN) on a specific GSA FSS contractors contract, can the contractor have it both ways, sometimes have that contract labor category SCA and sometimes not?  

"Applicable to this solicitation (Service Contract Labor Standards 52.222-41, and related clauses 52.222-17, 52.222-42, 52.222-43, 52.222-49, and 52.222-55) (A) The Service Contract Labor Standards (SCLS), formerly known as the Service Contract Act (SCA) applies to some nonprofessional services to be provided under this Schedule excluding pricing offered for services outside of the United States. The SCLS wage determinations applicable to this solicitation and resultant contract are located on the MAS roadmap. Some of the proposed labor categories may be subject to the SCLS (usually nonprofessional categories and fixed-price services). As such, the offeror should verify that its proposed base rates and fringe benefit rates for these labor categories meet or exceed the SCLS wage determination rates and fringe benefits for the areas included in the geographic scope of the contract (i.e., nationwide); the offeror will be required to comply with applicable SCLS wage determination 47QSMD20R0001 Refresh: 0009 Section I A. Instructions to Offerors Page: 13 of 141 locality rates and fringe benefits regardless of the price proposed and awarded on any resultant Schedule contract. The offeror may be required to submit supporting documentation for the proposed rates that will allow the contracting officer to conduct price analysis to determine that offered prices are fair and reasonable. (B) Schedule contractors must comply with the base rate and fringe benefit rate requirements of the prevailing SCLS Wage Determination (WD) Revision Number currently incorporated into the GSA Schedule contract. Task orders may not incorporate WDs different from those incorporated into the Schedule contract, as the order may then be in conflict with the Schedule contract terms and conditions. However, Schedule contractors must comply with the WDs incorporated into the Schedule contract based on the rate applicable to the locality in which the work is to be performed, regardless of the pricing proposed and awarded on the contract. WDs based on collective bargaining agreements (CBAs) may be incorporated into a task order if the task order is found to be a successor contract as used in FAR Subpart 22.10; a CBA WD would be applicable only to the task order it is incorporated into and no other orders under that Schedule contract. (C) In the price proposal template (PPT), indicate which of the proposed labor categories or fixed price services are subject to the SCLS by placing a double asterisk (**) next to the labor category name or fixed price service. (D) For each SCLS eligible contract labor category or fixed price service, complete the following information in the below spreadsheet format directly in eOffer (labor categories shown are for example purposes): SCA/SCLS Matrix SCLS Eligible Contract Labor Category/Fixed Price Service SCLS Equivalent Code Title WD Number Secretary 01115 General Clerk I 052059 Driver 31361 Truck driver, Light Truck 052059 Engineering Technician 29081 Engineering Technician I 052059 Administrative Assistant 01011 Accounting Clerk I 052059 (E) The following language must be inserted below the SCLS/SCA matrix in the authorized price list posted on GSA Advantage: "The Service Contract Labor Standards, formerly the Service Contract Act (SCA), apply to this contract and it includes SCLS applicable labor categories. Labor categories and fixed price services marked with a (**) in this pricelist are based on the U.S. Department of Labor Wage Determination Number(s) identified in the SCLS/SCA matrix. The prices awarded are in line with the geographic scope of the contract (i.e., nationwide)."

Vern Edwards said:

Plausible?

I believe so.

formerfed said:

Sure it can at least in the context discussed here.  An ordering agency has a task order requirement.  The agency decides the work involved.  A contractor responds with a proposal that includes one or more labor categories and associated rates.  It’s not the labor title that decides whether the work is exempt or not.

See my response to Vel, I do not think you have considered the full solicitation contract award process that GSA uses.  By example are you saying, in consideration of the detail I provided to Vel, that the positions on this contractors current pricing can sometimes be SCA exempt and sometimes not?  As you consider please consider how these categories cross reference to the most current USDOL SCA Directory of Occupations

 Contractors description of the category (picked one category out of tens of them)- 

Minimum/General Experience: Zero to two years related experience providing assistant to attorneys and preparing legal documents or paralegal certification.

Functional Responsibility: Provides assistance to attorneys in preparing legal documents. Performs legal research and compiles data from a variety of reference sources such as digests, encyclopedias, and practice manuals. Performs document preparation (especially during discovery and production support) including reviewing, organizing, numbering, and indexing). Document conversion involving capturing documents on some sort of media: magnetic, CD, microfilm, and converting documents to image (such as tiff or pdf) or to text Performs computer-assisted research on systems such as Lexis and Westlaw. Formal training in legal research and methods.

Minimum Education: Bachelor’s degree or equivalent combination of training / experience.

SKILL CATEGORY/SKILL DESCRIPTION

GOVT. HOURLY NET
PRICE

Litigation Support Services– 541611LIT

Legal Assistant I

$     37.70

L

C Culham said:

So in consideration of the below quote the question loops back to you, considering what GSA asks for with regard to compliance to SCA in the solicitation/contract   in establishing pricing for a specific labor category (CLIN) on a specific GSA FSS contractors contract, can the contractor have it both ways, sometimes have that contract labor category SCA and sometimes not?  

"Applicable to this solicitation (Service Contract Labor Standards 52.222-41, and related clauses 52.222-17, 52.222-42, 52.222-43, 52.222-49, and 52.222-55) (A) The Service Contract Labor Standards (SCLS), formerly known as the Service Contract Act (SCA) applies to some nonprofessional services to be provided under this Schedule excluding pricing offered for services outside of the United States...

The entire quote provided by Carl, of which the above is a brief excerpt, is evidence that our government has lost its bureaucratic mind.

Carl, can you provide a link to that solicitation?

Just now, Vern Edwards said:

Carl, can you provide a link to that solicitation?

On 1/3/2022 at 6:52 AM, C Culham said:

To understand this further consider the following wording from the current solicitation on the street for various categories/SINS for GSA FSS.  Go here https://sam.gov/opp/ec77a8ef4af24c229fc199cb96af7f55/view

I know poor me, and probably my own dang fault for not being very good at written communication but I think my position on all kinds of issues in Forum would be better understood (whether I am right or wrong) if folks would read my posts😪🤣

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I know poor me, and probably my own dang fault for not being very good at written communication but I think my position on all kinds of issues in Forum would be better understood (whether I am right or wrong) if folks would read my posts😪🤣

Carl, That post was more than 24 hours ago, and you have posted volumes since then. Do you expect me to read and memorize? 😝

Thanks for the link.

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By example are you saying, in consideration of the detail I provided to Vel, that the positions on this contractors current pricing can sometimes be SCA exempt and sometimes not?

@C Culham I’m not saying prices can sometimes be exempt or not.  Pricing does include SCA coverage.  What I am saying is that a given labor category pricing can be for work that is both SCA covered and not covered.  It’s the nature of the work that counts.  A task order defines a job that needs done.  A contractor proposes pricing by labor category.  Just because the rates for those categories are based on SCA coverage doesn’t mean the task order work is.

formerfed said:

A task order defines a job that needs done.

Yes and the labor category that is going to do it is proposed and that labor category from the contractors schedule contract is either SCA or not.   If the task order requires a category not on contract the I see it becoming a open market need.   Two references make me think this way -

1. This from the reference you posted on Sat, Jan 1 at 1:08 -  "Task orders may not be issued to Schedule contractors unless the labor categories/fixed price services applicable to the order are awarded under the contractor’s Schedule contract or procured IAW GSAR Clause 552.238-115, Special Ordering Procedures for the Acquisition of Order-Level Materials."

2. And this statement found on all wage determinations with a reminder that wage determinations are in the orders  - 

"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)). Such conforming procedures shall be initiated by the contractor
prior to the performance of contract work by such unlisted class(es) of employees
(See 29 CFR 4.6(b)(2)(ii)). The Wage and Hour Division shall make a final
determination of conformed classification wage rate and/or fringe benefits which
shall be paid to all employees performing in the classification from the first day
of work on which contract work is performed by them in the classification. Failure
to pay such unlisted employees the compensation agreed upon by the interested
parties and/or fully determined by the Wage and Hour Division retroactive to the
date such class of employees commenced contract work shall be a violation of the Act
and this contract. (See 29 CFR 4.6(b)(2)(v)). When multiple wage determinations are
included in a contract a separate SF-1444 should be prepared for each wage
determination to which a class(es) is to be conformed."

@C Culham I’m not sure I completely agree with you on this but I think we are close enough.  

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If the task order requires a category not on contract the I see it becoming a open market need.

In typical Wifcon Forum fashion, we have wandered off track. Here is the original question:

On 12/29/2021 at 8:07 AM, CuriousContractor_22 said:

Hi there,

I have seen agencies issue task orders under GSA schedules and state the task order it is not SCA applicable because they believe all employees will be bona fide executive, administrative or professional employees. Here's the issue: many vendors have labor categories that are SCA applicable in their GSA schedules - e.g., word processors, support staff,  clerks, etc.

Since the agency says SCA is not applicable on the task order due to the "bona fide executive, administrative, or professional employees" assumptions, is the contractor supposed to ignore their SCA wage determinations? Or is the contract office at the agency wrong and cannot overrule the SCA? I have not found a clear answer on this.

Suppose that a contractor has a GSA FSS contract that contains FAR 52.222-41 and 52.216-18. It receives two task orders. The first is for work the primary purpose of which is to obtain services from "service employees." The second is for professional services, with nonprofessional employees working in support.

The contractor pays the nonprofessional employees SCLRs under the first order. But following the instructions given to CuriousContractor_22 by the agency, that the second order is not subject to the SCA, the contractor pays lower rates under that order. The contract says nothing about that procedure.

Nonprofessional employees working on both tasks and doing the same work under the same job titles notice that they are not getting the SCLRs for their work under the second order and complain to the contractor, their employer. The contractor tells them the SCLRs don't apply to the second order. The employees complain to the DOL.

Do the CO's instructions that the SCA and the SCLRs do not apply to the second order constitute an adequate defense against violation of the Service Contract Act and breach of 52.222-41?

In light of 52.222-41 and 52.216-18, did the CO who issued the two orders have the authority to say that the SCLRs did not apply to the second order?

Does the SCA apply to the contract as a whole or on an order-by-order basis?

Has the contractor violated the terms of 52.222-41?

Vern Edwards said:

In typical Wifcon Forum fashion, we have wandered off track. Here is the original question:

Suppose that a contractor has a GSA FSS contract that contains FAR 52.222-41 and 52.216-18. It receives two task orders. The first is for work the primary purpose of which is to obtain services from "service employees." The second is for professional services, with nonprofessional employees working in support.

The contractor pays the nonprofessional employees SCLRs under the first order. But following the instructions given to CuriousContractor_22 by the agency, that the second order is not subject to the SCA, the contractor pays lower rates under that order. The contract says nothing about that procedure.

Nonprofessional employees working on both tasks and doing the same work under the same job titles…

@Vern EdwardsExcept CuriousContractor_22 said “they believe all employees will be bona fide executive, administrative or professional employees.”  Your scenario has the contractor paying nonprofessional in both situations.  I think a fairer comparison is doing nonprofessional work in the first and professional work in the second task but using the same job title.

@formerfedThere will always be some nonprofessional workers, even when the principle purpose of the task is professional. In my scenario, the nonprofessionals working under the second task provide support.

Then I think if the support nonprofessional personnel are other than incidental, then the SCA applies.

The problem I have is interpreting that all services of a category are considered SCA covered because DOL has a labor classification for that job.  I believe we need to look at the specifics of a task and decide.

formerfed said:

hen I think if the support nonprofessional personnel are other than incidental, then the SCA applies.

What does incidental have to do with it? I thought the standard, as stated in FAR 22.1003-1, was "principal purpose"? Where did you find your incidental/nonincidental standard? Is that in 29 CFR part 4? (See 29 CFR 4.111 and 4.130.) It's not in FAR subpart 22.10?

In any professional task, nonprofessional support personnel may outnumber the professional personnel. That does not make their work the principal purpose of the task.

But assume that the task entails work by ten Ph.D. physicists and three nonprofessional technicians.

Vern Edwards said:

What does incidental have to do with it? I thought the standard, as stated in FAR 22.1003-1, was "principal purpose"? Where did you find your incidental/nonincidental standard? Is that in 29 CFR part 4? (See 29 CFR 4.111 and 4.130.) It's not in FAR subpart 22.10?

I’m thinking in terms of GSA Schedule orders.  You likely would have multiple CLINS because you wouldn’t categorize everyone at the same pay rate.  Support or incidental staff will have a different rate.  Those might be at SCA covered jobs.  But if we are looking at the overall task as one effort, then incidental goes away.

@formerfedGSA schedule CLIN prices have nothing to do with it! Those are the prices the government pays the contractor for the services. We're talking about the wages and fringes the contractor must pay to its employees.

Do the SCA and the SCLRs apply to the contract as a whole or on an order-by-order basis?

Has the contractor violated the terms of 52.222-41?

Vern Edwards said:

Is the following plausible?

Vern:  I’ll take the bait, realizing this is a David vs. Goliath matchup.

I agree that when 52.222-41 is incorporated at the IDIQ level, it applies to all task orders. But I’m not sure I agree that the test of the principle purpose is not performed at the task order level. The definition of Contract in Part 2 does include “job order or task letters issued under basic ordering agreements.”

An IDIQ does not order any services that are subject to the act, but the task orders do.  52.222-41(b) reads in part “This clause does not apply to contracts or subcontracts administratively exempted by the Secretary of Labor or exempted by 41 U.S.C. 6702, as interpreted in Subpart C of 29 CFR Part 4.”  To say that all orders are subject to 52.222-41 and employees must be compensated by the relevant wage determination would seem to render the sentence, quoted above, as irrelevant.  By that logic, it would seem that even an order under $2,500 would then be subject to the wage determinations.

 Yes, I do agree your solution is plausible.

C Culham said:

the question loops back to you

Admittedly, I’ve never worked for GSA and even my experience at placing orders under schedules is not very vast. But my take on the requirements that you posted (assuming I were a contractor) would be to develop the most competitive SCLS rates, taking into consideration the multiple WDs as well as the potential to run across CBAs with high rates. If the situation arose where the work was not covered by the Act, then offering or negotiating lower rates may then be possible.

Vern Edwards said:

Suppose that a contractor has a GSA FSS contract that contains FAR 52.222-41 and 52.216-18. It receives two task orders. The first is for work the primary purpose of which is to obtain services from "service employees." The second is for professional services, with nonprofessional employees working in support.

'I fear this takes us off topic again yet uncovers some very good info regarding GSA FSS that at least for me has been a learning process.  Why? 

Within GSA FSS there are two options to procure professional services - the "Professional Services" MAS (PS) and OASIS.   

Under the PS the rates are not subject to SCLS.   To confirm this go back to the RFP that I have provided as reference and look at the "Professional Services Category Attachment".  No reference to SCA (aka SCLS).  I believe the reason is only professional service categories are priced on this schedule to which GSA has determine SCA does not apply.  I would suggest that if an agency needed both professional and non-professional services the Professional Services MAS would not be appropriate to use. 

So lets move to OASIS where a mix would be appropriate.  I implore all to go to the reference link that immediately follows and read, most specifically pages 14 and 15.  https://www.gsa.gov/cdnstatic/Final Conformed OASIS Solicitation.pdf 

And as usual for me you might find the document "Comparison [PDF - 145 KB]" that is found at the bottom of this webpage https://www.gsa.gov/buying-selling/products-services/professional-services/buy-services/oasis-and-oasis-small-business of interest where PS and OASIS are compared 

Once you have read I think you, like me will learn more, which for me has me doing a complete 360 and would suggest to the OP that Yes in certain instances depending on the GSA FSS schedule the agency can tell a contractor that the needed services are those that might be exempt from SCA (SCLS).

I will follow the thread further but I really do believe it is case closed, lesson learned, with apologies to all for not doing my homework first before writing even one comment!  Now I will see if lesson learned for me sticks for future Forum discussions!

Happy New Year!

Vel said:

Vern:  I’ll take the bait...

Thanks for your answer. I'll wait for formerfed before I respond.

C Culham said:

'I fear this takes us off topic again...

It does.

Vern Edwards said:

@formerfedGSA schedule CLIN prices have nothing to do with it! Those are the prices the government pays the contractor for the services. We're talking about the wages and fringes the contractor must pay to its employees.

Do the SCA and the SCLRs apply to the contract as a whole or on an order-by-order basis?

Has the contractor violated the terms of 52.222-41?

I can see task order CLINS or line items breaking down work separately.  That was my thinking about distinguishing between SCA and non-SCA.  But never mind,

I see the SCA applying at the task order level. The contract just has a huge listing of labor categories and a very broad Section C.  It can’t possibly be so detailed to distinguish whether any or all work is SCA covered or not.  That’s decided at the order level.

formerfed said:

I can see task order CLINS or line items breaking down work separately.  That was my thinking about distinguishing between SCA and non-SCA.  But never mind,

I see the SCA applying at the task order level. The contract just has a huge listing of labor categories and a very broad Section C.  It can’t possibly be so detailed to distinguish whether any or all work is SCA covered or not.  That’s decided at the order level.

@formerfedThanks!

I don't know the right answer, if there is one.

My point in all this has been to show that the acquisition regulatory regime has become so voluminous, complicated, and convoluted that it has given rise to a system of extreme complexity and significant unpredictability. Unpredictability puts businesses in doubt and at risk. Doubt and risk  increase the costs of compliance and the prices of supplies and services. They are drags on process. At the same time, they make real and full compliance nearly impossible. Statutes, executive orders, regulations, policies, deviations, exceptions, "informative" websites. It's all too much.

Unfortunately, our governing institutions are so dysfunctional now that we cannot fix the system. We have seen that "reform" does not work. That's because Congress, the Executive Branch, and the Judicial Branch simply do not function as they should and as they must in order to sustain and protect us. 

For all the NCMA ballyhoo and recent tendency to celebrate "leaders," a cult of personalities, much of what is called "innovation" is really just connivance to exploit rule conflicts and gaps and develop work-arounds, which sometimes undermines the integrity of the system and process, giving rise to cynicism and discouragement. 

This is a sad state of affairs. I have devoted an almost 50-year career to trying to understand the system and the process. But you can see, below, what I have adopted as a signature motto.

Vern Edwards said:

My point in all this has been to show that the acquisition regulatory regime has become so voluminous, complicated, and convoluted that it has given rise to a system of extreme complexity and significant unpredictability. Unpredictability puts businesses in doubt and at risk. Doubt and risk  increase the costs of compliance and the prices of supplies and services. They are drags on process. At the same time, they make real and full compliance nearly impossible. Statutes, executive orders, regulations, policies, deviations, exceptions, "informative" websites. It's all too much.

Unfortunately, our governing institutions are so dysfunctional now that we cannot fix the system. We have seen that "reform" does not work. That's because Congress, the Executive Branch, and the Judicial Branch simply do not function as they should and as they must in order to sustain and protect us.

@Vern Edwards Your response got me thinking why the system evolved the way it has.  Three thoughts immediately came to mind.

One is government wants the system to serve too many constituent groups.  The subject of this discussion for example results from attempts to satisfy organized labor.   Then we have the complexity from efforts to support small and all the related subsets of small businesses and other organizations.  Recently the Administration decided that contractor employees must be vaccinated.  Every year the appropriation bills require agencies to do things and spend money for things relatively meaningless for the specific agencies.  It’s almost like using acquisition to support mission accomplishment is a side purpose.

We take good ideas and “Federalize” them where they often are not worth doing.  Past performance evaluations,  use of IDIQ contracts, strategic sourcing,  and simplified acquisitions are examples.

Finally there are so many “controls” in place because government contracting personnel just can’t or don’t know how to apply rules.

@formerfed

formerfed said:

One is government wants the system to serve too many constituent groups.  The subject of this discussion for example results from attempts to satisfy organized labor.   Then we have the complexity from efforts to support small and all the related subsets of small businesses and other organizations.  Recently the Administration decided that contractor employees must be vaccinated.  Every year the appropriation bills require agencies to do things and spend money for things relatively meaningless for the specific agencies.  It’s almost like using acquisition to support mission accomplishment is a side purpose.

Bingo!

Add to that the nature of our government, with its separation of powers (unlike in parliamentary systems).

When Congress doesn't like the way the Executive Branch performs, it makes laws, because that's all it can do. Then the Executive writes orders and regulations. So many rules. The courts and other legal tribunals are involved with everything, because lawyers and litigants make it so. More rules ("case law").

It's not enough that practitioners think it can be useful to consider past performance. We have to make it a law. And once it's in the books... And please don't get me started on performance-based acquisition.

Too many top and mid-level management jobs are done by political appointee amateurs. By the time they set up office and bone up on the work it's time to leave. They, of course, have to launch their "initiatives."

I could go on, but to no purpose. Every informed and thinking American knows what's up.

Vern Edwards said:

Too many top and mid-level management jobs are done by political appointee amateurs. By the time they set up office and bone up on the work it's time to leave. They, of course, have to launch their "initiatives."

Hey all, just wondering who the current OFPP Administrator is right now? How's that going for us?

here_2_help said:

Hey all, just wondering who the current OFPP Administrator is right now? How's that going for us?

No idea. Doesn't matter anyway.

Lesley Field signed a memo on Nov. 15 as the Acting Administrator (Subj:  Issuance of Agency Deviations to Implement Requirements Addressing the Use of Nonavailability Waivers Under E.O. 14005).