Requirement to pay current SCA wage rates when the contracting officer doesn't incorporate the new/updated WD into the contract

elgueromeromero said:

Situation:

First have you talked to the CO about the situation?   If yes and the CO has not cleared up the confusion then you should talk to the USDOL.

Maybe this helps too -

FAR 22.1015 Discovery of errors by the Department of Labor.

If the Department of Labor discovers and determines, whether before or after a contract award, that a contracting officer made an erroneous determination that the Service Contract Labor Standards statute did not apply to a particular acquisition or failed to include an appropriate wage determination in a covered contract, the contracting officer, within 30 days of notification by the Department of Labor, shall include in the contract the clause at 52.222-41 and any applicable wage determination issued by the Administrator. If the contract is subject to 41 U.S.C. 6707(c), the Administrator may require retroactive application of that wage determination. The contracting officer shall equitably adjust the contract price to reflect any changed cost of performance resulting from incorporating a wage determination or revision.

If 52.222-43 is in your contract then 52.222-41 should be as well.   

FAR 22.1026 Disputes concerning labor standards.

Disputes concerning labor standards requirements of the contract are handled under paragraph (t) of the contract clause at 52.222-41, Service Contract Labor Standards, and not under the clause at 52.233-1, Disputes.

The CO has told us (verbally) that he's too busy to issue mods to incorporate updated SCA WDs. On other contracts where this has come up, I've sent an email to the CO asking if the CO intends to issue a mod to incorporate an updated WD. Unfortunately, in every case, the CO has ignored the email and follow-up requests. 

We've discussed going to DOL but that kind of seems like the nuclear option. But for this contract, it might be what we end up doing.

I'd like to first get answers to my questions above before I go to the DOL as I want to be sure I understand our rights, obligations, and that we are interpreting the SCA clauses and regulation correctly.

In my experience, contractors are expected to comply with prevailing wage requirements, whether or not the CO modifies the contract.

here_2_help said:

In my experience, contractors are expected to comply with prevailing wage requirements, whether or not the CO modifies the contract.

Even if that means forfeiting the ability to get a price adjustment per FAR 52.222-43? 

If we decide to voluntarily pay the current wage rates in accordance with a newly issued updated WD, I don't think we'd be able to seek a price adjustment for the increase given that the increase is calculated based on the delta of current rates being paid vs new rates required by new WD. That and because the Gov't has not changed the contract, so we would not have a basis for entitlement for the cost increase.

It doesn't seem right that a contractor can recover the cost increase if the CO issues the mod, but is on the hook for the additional costs if the CO doesn't follow the FAR and issue the mod with the WD.

elgueromeromero said:

The CO has told us (verbally) that he's too busy to issue mods to incorporate updated SCA WDs. On other contracts where this has come up, I've sent an email to the CO asking if the CO intends to issue a mod to incorporate an updated WD. Unfortunately, in every case, the CO has ignored the email and follow-up requests. 

We've discussed going to DOL but that kind of seems like the nuclear option. But for this contract, it might be what we end up doing.

I'd like to first get answers to my questions above before I go to the DOL as I want to be sure I understand our rights, obligations, and that we are interpreting the SCA clauses and regulation correctly.

@elgueromeromero I don't know how big your company is and how much revenue it brings in from government contracts, but I have looked at some of the 61 entries you have posted to Wifcon since you signed on in December 2008, and they all seem to involve inquiries about competitions for service contracts or the administration of service contracts.

Has your company retained an attorney or consultant to advise you about these kinds of problems?

On 10/7/2022 at 7:47 AM, elgueromeromero said:

Unfortunately, in every case, the CO has ignored the email and follow-up requests.

Send the CO a letter, certified return receipt requested, and in it demand a response within 15 days of receipt.   Forget emails!

On 10/7/2022 at 7:47 AM, elgueromeromero said:

We've discussed going to DOL but that kind of seems like the nuclear option.

FAR 52.222-41 and -43 provide for remedies that you are entitled to.  If the CO is stonewalling you why would it be nuclear to go to the USDOL?  After all you stand to loose money IF new required wage determination causes you to have to increase wages/fringe benefits to those working under the contract.  And do you have subs, think about what the ramifications are with regard to them and how it would roll to you as prime.

On 10/7/2022 at 10:22 AM, elgueromeromero said:

Even if that means forfeiting the ability to get a price adjustment per FAR 52.222-43?

That's your decision so either roll with it or as Vern Edwards advises get some one that can help with the details.  My advice here is just to get you thinking.

On 10/7/2022 at 10:22 AM, elgueromeromero said:

That and because the Gov't has not changed the contract, so we would not have a basis for entitlement for the cost increase.

Maybe on the "That" as I do not know the details but again 52.222-41/43 are in the contract and as such your right remains for contract adjustment unless you agree to have the clauses removed!!!!!

On 10/7/2022 at 10:22 AM, elgueromeromero said:

It doesn't seem right that a contractor can recover the cost increase if the CO issues the mod, but is on the hook for the additional costs if the CO doesn't follow the FAR and issue the mod with the WD.

Not true.  I already pointed you to two FAR citations that demonstrate your view is off base.   You are responsible for paying the correct wage and the contract, and FAR policy provide for how you are not on the hook IF the new determination causes you to have to increase wages/fringe benefits.

I tried the easy way to respond to the questions now I will address each. 

Question #1 - Yes you are interpreting correctly but remember there is an unless by USDOL.  One reason you might want to contact them.

Question #2: Yes you must pay the required wage/benefit.   If USDOL finds out you are not in absence of a mod too bad, you as the contractor must pay the required SCA wage/benefit. 

Question #3: Not sure but I will guess it is the biannual anniversary date.   Here is a great reference - read it from cover to cover it might help you now and in the future. https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/FOH_Ch14.pdf 

Question #4: You forfeit nothing unless you do it on your own.   Your first step is write the CO seeking the mod.   No response as demanded then I would  pay the correct wage/fringe based on what you believe to be the new wage determination and send the CO a written timely notice per (f) of the 52.222-43.   If still stone walled then go to the USDOL.    Remember an employee has the right to contact USDOL if you (or a sub) do not pay correctly per the wage determination and should that happen you are truly going to be in big mess.

Most of all I hope my thoughts push you to get help from legal/consultant that is versed in SCA and that you can share all the details with.   My thoughts and answers are based on the very limited information and no knowledge of all the specifics of the contract.    Most of all exercise your rights under the contract.

C Culham said:

Question #2: Yes you must pay the required wage/benefit.   If USDOL finds out you are not in absence of a mod too bad, you as the contractor must pay the required SCA wage/benefit.

As companies I have supported in the past have found out, to their di$may.

On 10/7/2022 at 12:08 PM, Vern Edwards said:

@elgueromeromero I don't know how big your company is and how much revenue it brings in from government contracts, but I have looked at some of the 61 entries you have posted to Wifcon since you signed on in December 2008, and they all seem to involve inquiries about competitions for service contracts or the administration of service contracts.

Has your company retained an attorney or consultant to advise you about these kinds of problems?

Vern,

We just made the decision today to retain outside counsel to advise on this matter. 

I typically try to do as much research as I can before seeking assistance from a consultant or attorney. I've been able to find answers to a lot of questions by reading the FAR, referring to Administration of Gov't Contracts (Cibinic and Nash), reading articles online written by Gov Con Attorneys, reading WIFCON content and occasionally posting to the discussion board. If, after all of that, I'm still not confident in the answer or best course of action, I will then advise my leadership that we should retain a consultant or attorney. 

WIFCON has been very helpful to me both as a Contracts Manager for a federal contractor and during my years as an 1102. I really appreciate the expertise and guidance provided here.

Thanks

Elguero, is FAR 52.222-41 in your contract?  If so have you read this language "Each service employee employed in the performance of this contract by the Contractor or any subcontractor shall be paid not less than the minimum monetary wages and shall be furnished fringe benefits in accordance with the wages and fringe benefits determined by the Secretary of Labor, or authorized representative, as specified in any wage determination attached to this contract?"  This language must be read in conjunction with FAR 52.222-43 and harmonized so that neither is read out of the contract and each is given effect.  If a new WD covers your area, but the CO does not add it to the contract, it seems you would have a valid claim.

On 10/6/2022 at 3:16 PM, elgueromeromero said:

Situation: Our company was awarded a multiple-year task order with a 5-year period of performance (no options). The task order is subject to SCA and had a wage determination included as part of the award. The task order is not subject to annual appropriations (at least I don’t think it is). 

Question #1: If I’m interpreting FAR 22.1007 correctly, isn’t the contracting officer required to obtain a new wage determination on the biennial anniversary date of the task order award and incorporate it into the contract via a mod? So for this TO with a five-year POP, shouldn't there be a mod issued at both the year 2 and year 4 marks to incorporate any updated/new wage determination? 

Question #2: FAR 52.222-43(c) seems to indicate that even if the contracting officer doesn’t issue a mod, the WD current on the anniversary date applies to the contract. Does this mean that the contractor is still required to pay current SCA wage rates even if the current WD wasn't incorporated into the contract?

Question #3: I noticed that FAR 22.1007 distinguish between contracts funded by annual appropriations and those not funded by annual appropriations, but FAR 52.222-43 does not. For contracts not funded by annual appropriations, is it the anniversary date or is it the biennial anniversary date that triggers the requirement to pay the current WD rates? 

Question #4: What are we supposed to do when the contracting officer doesn’t issue mods to incorporate updated wage determinations? Are we still required to start paying the new SCA rates on the biannual dates of our TO? If so, do we just submit an REA for the cost increase associated with paying the updated rates, or would we submit a proposal for a price adjustment IAW FAR 52.222-43 even though we didn’t “receive” a new WD (we would have just pulled it from SAM.GOV)? I’ve always been told that if you “voluntarily” decide to increase wages (i.e., increase them without a mod that incorporates a new WD) to bring them in line with a current WD, you could forfeit your ability to get a price adjustment under FAR 52.222-43. 

In this case, we asked the CO if he was going to issue a mod to incorporate the new WD and the answer we received (verbally) was basically that they are too busy and won’t be issuing mods to incorporate new WDs. 

From what I understand, once a contracting officer initially determines that SCA applies to a contract, the Christian doctrine would apply for any future omissions under that contract related to SCA requirements (such as not incorporating a new WD into an existing contract).

Note that on the old DOL site where the WDs used to live, the following statement was on the homepage in bold, red font: “CAUTION: Users should note that the only WDs applicable to a particular solicitation or contract are those that have been incorporated by the contracting officer in that contract action.” The current Federal Service Desk FAQs for WDs includes a similar statement: “Note: Access to the WDs on the SAM.gov is available to the public for information purposes only. The only WDs applicable to a specific solicitation or contract are those the contracting officer has incorporated in that contract.” This seems to contradict FAR 52.222-43(c).

So which is it? Is the only WD that applies the latest one incorporated into the contract, which would be in line with the statements from the old DOL site and the current FSD FAQs, or does the WD current on the [anniversary]/[biannual anniversary] date of the contract apply, IAW FAR 52.222-43? I’m so confused. Any guidance would be very much appreciated.

@elgueromeromero The Service Contract Labor Standards Act and Davis-Bacon Act apply to service and construction contracts, respectively, performed within the U.S., barring some exceptions.  Yes, the CO should have incorporated (via a modification) the new DOL WD into your contract when it became available.  However, even if he/she did not, the prevailing wage rates under those laws remain enforceable.  A contract may not necessarily express every federal law and common law principle that exists, but that does not absolve you from their terms when you willingly enter into a Governmental contract.  A contract may not explicity prohibit your company from engaging in larceny, but the laws against it still apply to your contractual dealings with the awarding agency. 

When you say, "I’ve always been told that if you 'voluntarily' decide to increase wages (i.e., increase them without a mod that incorporates a new WD) to bring them in line with a current WD, you could forfeit your ability to get a price adjustment under FAR 52.222-43," here's the best response/example I can offer you.  If the new DOL WD mandates you pay $60@hour for the relevant labor category and you already pay that amount or perhaps you pay $61@hour, then typically you would not have merit upon which to seek an REA from the awarding agency.  However, if you currently pay your employees under that LabCat, $58.70 an hour, for example, and the new DOL WD, which is enforceable through the acts/statutes I cited above, requires you to pay $1.30 more an hour, then you may well have basis to seek an equitable adjustment.  In other words, any wage increases discretionarily pay by the employer above the prevailing rates, are not inherently subject to an equitable adjustment by the Government.  

Mr. Edward's advice was spot on; you may want to seek counsel or specialized business advisement.  I would caution you that federal contracts law is a specific area of study, which many attorneys do not understand well (enough).  Therefore, I would recommend you either seek guidance from an attorney who specializes in contracts subject to Federal Acquisition Regulation or another professional who is an experienced subject matter expert, e.g., a former fed/CO now in private consulting.  With respect to the nature of the obligations, that is, if the funds are congressionally appropriated, on the surface I would say this likely has little if any effect on whether the prevailing labor wages apply.  But, again I would suggest you seek professional advisement.

On 10/12/2022 at 6:15 PM, Guardian said:

Yes, the CO should have incorporated (via a modification) the new DOL WD into your contract when it became available.  However, even if he/she did not, the prevailing wage rates under those laws remain enforceable.

Guardian, what is the basis for this statement?  To me, FAR 52.222-41 clearly requires the contractor to pay not less than the wages and fringe benefits specified in the wage determination included in the contract.

On 10/14/2022 at 11:57 AM, Retreadfed said:

Guardian, what is the basis for this statement?  To me, FAR 52.222-41 clearly requires the contractor to pay not less than the wages and fringe benefits specified in the wage determination included in the contract.

On 10/6/2022 at 3:16 PM, elgueromeromero said:

Situation: Our company was awarded a multiple-year task order with a 5-year period of performance (no options). The task order is subject to SCA and had a wage determination included as part of the award.

@Retreadfed The OP states that the TO is subject to the SCLS (formerly known as the SCA) and incorporated a wage determination.  My reply to the OP was that the CO should have incorporated the "new DOL WD into [their] contract when it became available."  If the contract included a WD, then the contract becomes subject to the prevailing wage rates for the locality under statute.

FAR 52.222-41 (c) Compensation. (1) Each service employee employed in the performance of this contract by the Contractor or any subcontractor shall be paid not less than the minimum monetary wages and shall be furnished fringe benefits in accordance with the wages and fringe benefits determined by the Secretary of Labor [emphasis added], or authorized representative, as specified in any wage determination attached to this contract.

[End of citation]

If the DOL wage determination is revised, then the current rates by statute apply, regardless of whether the CO has incorporated the revised WD into the contract via a formal modification.

FAR 22.404-6(b)(5) If an effective modification is received by the contracting officer after award, the contracting officer shall modify the contract to incorporate the wage modification retroactive to the date of award and equitably adjust the contract price for any increased or decreased cost of performance resulting from any changed wage rates. If the modification does not change any wage rates and would not warrant contract price adjustment, the contracting officer shall modify the contract to include the number and date of the modification.

[End of citation]

Per DOL:

Is the rate on the wage determination the minimum hourly rate?

Yes. The wage rate on the wage determination is the prevailing rate for the occupation in the locality. The prevailing rate then becomes the minimum rate that the contractor must pay its employees working on the contract.

[https://www.dol.gov/agencies/whd/government-contracts/service-contracts/faq]

[End of citation]

Per DOL:

Employee Rights

The SCA provides covered service employees on covered service contracts the right to receive at least the locally prevailing wage rate and fringe benefits (or the rates, including prospective increases, contained in a predecessor contractor's collective bargaining agreement), as determined by the Department of Labor, for the type of work performed. The Wage and Hour Division accepts complaints of alleged SCA violations.

https://webapps.dol.gov/elaws/elg/sca.htm

Guardian said:

FAR 22.404-6(b)(5) …

Guardian, FAR 22.404 is applicable to construction, not services. “22.404 Construction Wage Rate Requirements statute wage determinations.”

joel hoffman said:

Guardian, FAR 22.404 is applicable to construction, not services. “22.404 Construction Wage Rate Requirements statute wage determinations.”

@joel hoffmanThanks Joel.  I was typing this on my phone and trying to look through acquisition.gov without the benefit of my regular-sized monitor.  Thanks for setting me straight.  Nontheless, my point is still well supported.  If the gurus disagree, please let me know. I do not wish to disseminate any wrongful information.  I awarded and administered SCA contracts at a large agency for several years under knowledgeable management.  I can call some contacts at DOL if need be.  I am just not sure why retread thinks that a COs failure to update the WD would excuse one's requirements under the SLCS to pay employees their legally mandated wages as set by the Secretary of Labor.  Again, I'm all ears for her/his or your alternate points of view.

Edit:  Here's the appropriate citation for SCA.  My regrets for the incorrect reference earlier.

22.1002-2 Wage determinations based on prevailing rates.

Contractors performing on service contracts in excess of $2,500 to which no predecessor contractor’s collective bargaining agreement applies shall pay their employees at least the wages and fringe benefits found by the Department of Labor to prevail in the locality [emphasis added] or, in the absence of a wage determination, the minimum wage set forth in the Fair Labor Standards Act.

Guardian said:

Thanks Joel.  I was typing this on my phone and trying to look through acquisition.gov without the benefit of my regular-sized monitor.  Thanks for setting me straight.  Nontheless, my point is still well supported.

@GuardianWhat is your point? Can you state it succinctly? In a single sentence? Can you back it up by reference to a Department of Labor Administrative Review Board decision or to an authoritative treatise instead of the wrong FAR section?

Vern Edwards said:

@GuardianWhat is your point? Can you state it succinctly? In a single sentence? Can you back it up by reference to a Department of Labor Administrative Review Board decision or to an authoritative treatise instead of the wrong FAR section?

@Vern EdwardsMy point is that if the contract was extended or an option was exercised without incorporating the revised DOL WD, the contractor's employers can still file a complaint with DOL.  I reread the OP's question and see now that theirs is a five-year contract with no options.  I notice also that the OP calls it a "task order."  They may want to confirm that the contract off which it is awarded does not incorporate a revised DOL WD that flows down, no?

"GSA has incorporated, by reference, the clauses prescribed at Federal Acquisition Regulation (FAR) Part 22 into GSA Schedule contracts. DoL wage determinations are incorporated into all Schedule contracts, and updated annually." 

I wouldn't necessarily call the following an "authoritative treatise," but I'll offer it up nevertheless:

https://www.pilieromazza.com/how-new-minimum-wage-and-service-contract-act-health-and-welfare-rates-apply-to-your-contract/

We have not received a new wage determination in several years. What should we do?
Although it is not a contractor’s responsibility to alert the contracting officer that a new wage determination should be applied, there are times where it may be prudent to remind the contracting officer that new wage determinations have been issued. As much as DOL tries, sometimes contracting officers are not aware of an updated wage determination, or it is forgotten. Alerting the contracting officer may help you avoid a disgruntled employee complaining to DOL. DOL ultimately has the authority to require that the contracting officer incorporate the new wage determination in a timely manner.

On 10/6/2022 at 2:16 PM, elgueromeromero said:

In this case, we asked the CO if he was going to issue a mod to incorporate the new WD and the answer we received (verbally) was basically that they are too busy and won’t be issuing mods to incorporate new WDs.

The OP should ask again in writing and request a written response. If the KO refuses to update the wage rates, the OP can contact DOL to determine if a revised wage decision is necessary. This has been discussed earlier in this thread.

On 10/6/2022 at 2:16 PM, elgueromeromero said:

Note that on the old DOL site where the WDs used to live, the following statement was on the homepage in bold, red font: “CAUTION: Users should note that the only WDs applicable to a particular solicitation or contract are those that have been incorporated by the contracting officer in that contract action.” The current Federal Service Desk FAQs for WDs includes a similar statement: “Note: Access to the WDs on the SAM.gov is available to the public for information purposes only. The only WDs applicable to a specific solicitation or contract are those the contracting officer has incorporated in that contract.” This seems to contradict FAR 52.222-43(c).

If the KO ultimately updates the wage rate, even with retroactive application, the contract provides for an equitable adjustment for increased or decreased costs due to the update. This has been discussed earlier.  The sooner the better.

joel hoffman said:

The OP should ask again in writing and request a written response. If the KO refuses to update the wage rates, the OP can contact DOL to determine if a revised wage decision is necessary. This has been discussed earlier in this thread.

If the KO ultimately updates the wage rate, even with retroactive application, the contract provides for an equitable adjustment for increased costs due to the update. This has been discussed earlier.  The sooner the better.

@joel hoffmanYes sir, I concur.  I was trying to add a slightly different perspective to the conversation without making a firm recommendation other than to reiterate what Mr. Edwards already advised the OP to do, which was seek paid professional guidance.

On 10/7/2022 at 10:47 AM, elgueromeromero said:

The CO has told us (verbally) that he's too busy to issue mods to incorporate updated SCA WDs. On other contracts where this has come up, I've sent an email to the CO asking if the CO intends to issue a mod to incorporate an updated WD. Unfortunately, in every case, the CO has ignored the email and follow-up requests.

  The aforementioned is what concerns me the most.  Perhaps the OP caught the KO in September when he/she was feeling overwhelmed by end of FY actions.  I suppose it is good that the KO did not put such a statement in writing.  What a "thing" to tell a contractor or anyone outside your organization.  Firstly, it implies that a revised WD should be incorporated, but simply isn't important enough relative to the myriad of redundant virtual meetings and other drivel sessions which have occurred since the request was made.  Secondly, how long does it take to issue an SF30 with the revised attachment?  As Vern has pointed out countless times, most of this work is suitable for those in the 1105 series.  It sounds to me like a failure from both the KO and their management.  Why can't a "clerk" put together the mod in an hour or less and send it over to the KO for signature?  I find it troubling that upper middle class people are sitting around pedantically discussing what affects real working people living in a high inflation, economically challenging environment.  I could tell you the story about another contractor being unable to receive remittance on invoices for an unacceptably long time because SAM cannot seem to process a change of name agreement associated with a UEI.  Good luck relying of the Government, while workers wait for issuance and processing of an REA.

Guardian said:

My point is that if the contract was extended or an option was exercised without incorporating the revised DOL WD, the contractor's employers can still file a complaint with DOL.

@GuardianProve it.

Please cite a source. Don't just assert all over the place and at length. Why should anyone believe you?

And if you do prove it, then tell us what DOL could and might do about the complaint? Please cite a source.

And then tell us what the contractor's liability would be, if any. Please cite a source.

On 10/6/2022 at 7:49 PM, C Culham said:

FAR 22.1015 Discovery of errors by the Department of Labor.

If the Department of Labor discovers and determines, whether before or after a contract award, that a contracting officer made an erroneous determination that the Service Contract Labor Standards statute did not apply to a particular acquisition or failed to include an appropriate wage determination in a covered contract, the contracting officer, within 30 days of notification by the Department of Labor, shall include in the contract the clause at 52.222-41 and any applicable wage determination issued by the Administrator. If the contract is subject to 41 U.S.C. 6707(c), the Administrator may require retroactive application of that wage determination. The contracting officer shall equitably adjust the contract price to reflect any changed cost of performance resulting from incorporating a wage determination or revision.

@Vern Edwards Carl provide a citation that states what DOL could and might do about the compaint.  The contractor's liability would (could) be employees that become disgruntled.  The direct financial liability for the higher wage rate would be the responsibility of the awarding agency, to be paid by a forced adjustment to the contract price.  The contractor would assume the costs related to the burden of sorting through the administrative mess.  I don't presume that everything happens in a vacuum when dealing withactual workers in what is presently an employees' marketplace.  The current fluidity and attrition of employees on my contracts is palpable.

Guardian said:

Carl provide a citation that states what DOL could and might do about the compaint.  The contractor's liability would (could) be employees that become disgruntled.  The direct financial liability for the higher wage rate would be the responsibility of the awarding agency, to be paid by a forced adjustment to the contract price.  The contractor would assume the costs related to the burden of sorting through the administrative mess.  I don't presume that everything happens in a vacuum when dealing withactual workers in what is presently an employees' marketplace.  The current fluidity and attrition of employees on my contracts is palpable.

@GuardianWhy not do some research? Why bother posting here if you're just going to make assertions that you cannot prove to be true? Why should anyone believe or rely on what you say?

You don't need specialized research tools like Westlaw or Lexis. All the information you need is publicly available online.

Instead of posting nonsense like this: "The direct financial liability for the higher wage rate would be the responsibility of the awarding agency, to be paid by a forced adjustment to the contract price," why not investigate and develop an understanding?

If this topic interests you, why not research, study, and learn before posting?

@Vern Edwards I will do further research, Vern.  I appreciate you challenging me.  I learn a lot from these exchanges, far more than I do from successes.  I learn little to nothing when people agree with me.

If I may, I'd like to relay a brief story.  I have a house with unique flooring in one of the bedrooms. A small portion of that flooring became damaged in the center of the room.  I looked high and low for a suitable match to replace those sections, to no avail.  I had home improvement contractors show up to offer solutions.  None were any good.  I searched the internet.  My problem remained unsolved. I then explained the situation to my father, who is in his 80s and doesn't know how to text.  He said to me,  take the flooring out of the closet and use it to replace the damaged pieces in the center of the room.  I took his suggestion and the surface now looks nearly brand new.  Why do I use this forum?  Because there are hundreds of years of combined knowledge here, something against which internet search engines cannot compete.

@GuardianRight at the beginning of this thread, Carl cited FAR 22.1015. Now, ask yourself, Where did that passage come from? Go to FAR 22.1000, Scope of subpart. Note that it cites Title 29 of the CFR Parts 4, 6, 8, and 1925. Check them out. Look at the tables of contents.

Now see 29 CFR 4.191, Complaints and compliance assistance. It mentions the DOL Wage and Hour Division. Well, find their website and look around.  Look at the headings on their home page. Keep going...

Get out of the pointless-posting cycle. Chase after knowledge, instead.

“Something hidden. Go and find it. Go and look behind the Ranges—“Something lost behind the Ranges. Lost and waiting for you. Go!”

Curiosity and pursuit, Dude! They are what make top notch practitioners!

Guardian said:

Carl provide a citation that states what DOL could and might do about the compaint.

I hope you do the research but you will be at it a long time.   As a subject SCA is quite involved with regard to venue for a dispute - USDOL or CDA, Government responsibility, contractor responsibility (corporate or individually), Christian Doctrine and much more.  Lots to know and understand and I would dare say that in some cases even the most sophisticated contractors fall into the abyss.   

As I followed the thread I pulled out some old notes that lead me to the first reference noted below and then the two other references noted which by the way used to be in a dated ABA attorney desk guide that provided - "However even if omitted from a solicitation the SCA and applicable wage determinations are binding on contractors".   

A place to start, not sure but they will demonstrate the very tangled web of SCA.  Have fun!

https://www.cbca.gov/files/decisions/2019/SULLIVAN_08-29-19_6029, 6030__SOTERA_DEFENSE_SOLUTIONS,_INC.V_DEPT._OF_AGRICULTURE.pdf

Kleenco, Inc., ASBCA 44348, 93-2 BCA ¶ 25,619 (1992), and Miller’s Moving Co., ASBCA 43114, 92-1 BCA ¶ 24,707

Off course from the OP?   Yes but support that getting an expert that has emersed themselves in SCA stuff and even contacting USDOL, both contacts for advice and counsel, would be the best help to the OP based where the instant facts of the OP's situation would be considered.

Thanks, Carl. I spent over an hour reading through the 29 CFR gobblygook regarding enforcement and trying to focus on the government’s responsibilities  for the wage requirements. I was getting ready to try to give up and contact the DOL Wage and Hour Division to ask when I saw Vern’s and your last posts. Your CBCA citation was excellent and clear!

https://www.cbca.gov/files/decisions/2019/SULLIVAN_08-29-19_6029, 6030__SOTERA_DEFENSE_SOLUTIONS,_INC.V_DEPT._OF_AGRICULTURE.pdf

C Culham said:

I hope you do the research but you will be at it a long time.

Maybe. But the time will be well-spent judging from what happened in the case to which the link was provided, Sotera Defense Solutions, Inc. v. Department of Agriculture, CBCA 6029,  6030, 19-1 BCA ¶ 37421, Aug. 29, 2019. Some excerpts:

Quote

If USDA had properly evaluated whether the SCA applied to the task order prior to award, it would have identified the labor categories and the applicable wage determinations and Sotera would have incorporated those wage rates into its offer or faced liability for its failure to do so. USDA is responsible for Sotera's inability to do so prior to contract award.

Quote

USDA asserts that “it was not the sole responsibility of the ordering activity to determine whether the SCA would apply.” Respondent's Brief at 10. As explained, this assertion is contradicted by the terms of the contract itself, which specifically assigned the ordering contracting officer this responsibility.

Quote

Finally, USDA argues that, because “[b]oth the government and Sotera should have been on notice that the SCA applied to these contracts,” Sotera is not entitled to an equitable adjustment. Respondent's Brief at 11. We do not find to be dispositive the fact that Sotera was on notice following DOL's investigation that there were three other SCA positions. Under the structure of the contract, the contracting officer had to identify those additional labor categories on separate line items in the task order. The contracting officer declined to do so prior to the conclusion of the DOL investigation and chose, instead, to proceed with the execution of the replacement task order. Having failed to undertake the effort, USDA now owes the costs.

Quote

USDA asserts that it is not liable for these costs because DOL did not require that the SCA be applied retroactively. Respondent's Brief at 12. USDA misapprehends DOL's direction. DOL directed USDA to modify the contract to add the provisions and told the contracting officer that it had found Sotera liable for back pay to its employees. If the application of the SCA provisions was not retroactive, Sotera would not have been liable for back pay. Moreover, the contracting officer acknowledged that the modification of the task order was retroactive to the beginning of performance.

That was some "contracting officer."

Guardian said:

I am just not sure why retread thinks that a COs failure to update the WD would excuse one's requirements under the SLCS to pay employees their legally mandated wages as set by the Secretary of Labor.

What requirements under the SLCS?    So far you have not identified any specific requirement stated in a statute, regulation or contract clause.

Elguero stated that his contract is subject to the SCA.  Therefore, I will presume that FAR 52.222-41 is incorporated in the contract, either physically or by operation of law.  FAR 52.222-41(c)(1) states "Each service employee employed in the performance of this contract by the Contractor or any subcontractor shall be paid not less than the minimum monetary wages and shall be furnished fringe benefits in accordance with the wages and fringe benefits determined by the Secretary of Labor, or authorized representative, as specified in any wage determination attached to this contract."  For purposes of this discussion, the key language is "as specified in any wage determination attached to this contract."  The way I understand your position, you are reading this language out of the contract and would end 52.222-41(c)(1) at "representative."  If my understanding is correct, your interpretation is contrary to the fundamental rules of contract interpretation.  Specifically, contracts are to be interpreted so as to give meaning to all their parts and without any parts being read out of the contract.  Despite this, you want to ignore specific language that limits a contractor's obligations under the contract and want to expand those obligations beyond what is required by the contract.  In this regard, I do not believe that the Sotara decision is applicable to the facts we are dealing with.  That decision dealt with an error in contract formation.  It had nothing to do with contract administration and a contractor's obligation to comply with a specific wage determination.  Sotara did not interpret the phrase "as specified in any wage determination attached to this contract." 

Another rule of contract interpretation is that the terms of a contract are to be read in harmony whenever possible and that internal conflicts are to be avoided.  Under this rule, FAR 52.222-41(c)(1) and 52.222-43(c), which reads in part "The wage determination, . . . current on the anniversary date of a multiple year contract or the beginning of each renewal option period, shall apply to this contract" need to be harmonized.  These clauses can be harmonized by inserting "be attached to this contract by the contracting officer and shall" between "shall" and "apply." 

Accepting this statement from elquero as accurate "The current Federal Service Desk FAQs for WDs includes a similar statement: “Note: Access to the WDs on the SAM.gov is available to the public for information purposes only. The only WDs applicable to a specific solicitation or contract are those the contracting officer has incorporated in that contract” it seems that DoL disagrees with you.  Moreover, this statement is fully consistent with 52.222-41(c)(1).

Finally, the FAR is a regulation that has the force and effect of law.  Thus, it is as binding on contractors, contracting officers and DoL as a statute would be.

Retreadfed said:

Accepting this statement from elquero as accurate "The current Federal Service Desk FAQs for WDs includes a similar statement: “Note: Access to the WDs on the SAM.gov is available to the public for information purposes only. The only WDs applicable to a specific solicitation or contract are those the contracting officer has incorporated in that contract” it seems that DoL disagrees with you.  Moreover, this statement is fully consistent with 52.222-41(c)(1).

I would be interested in case law that supports your analysis.   Especially in light of the following at the emphasis.   I am not sure the DOL disagrees with Guardian but then again this has been an all over the place thread.

22.1015 Discovery of errors by the Department of Labor.

If the Department of Labor discovers and determines, whether before or after a contract award, that a contracting officer made an erroneous determination that the Service Contract Labor Standards statute did not apply to a particular acquisition or failed to include an appropriate wage determination in a covered contract, the contracting officer, within 30 days of notification by the Department of Labor, shall include in the contract the clause at 52.222-41 and any applicable wage determination issued by the Administrator. If the contract is subject to 41 U.S.C. 6707(c), the Administrator may require retroactive application of that wage determination. The contracting officer shall equitably adjust the contract price to reflect any changed cost of performance resulting from incorporating a wage determination or revision.

I swear, the socio-economic policies are complicated nightmares.

Retreadfed said:

Another rule of contract interpretation is that the terms of a contract are to be read in harmony whenever possible and that internal conflicts are to be avoided.  Under this rule, FAR 52.222-41(c)(1) and 52.222-43(c), which reads in part "The wage determination, . . . current on the anniversary date of a multiple year contract or the beginning of each renewal option period, shall apply to this contract" need to be harmonized.  These clauses can be harmonized by inserting "be attached to this contract by the contracting officer and shall" between "shall" and "apply."

I think you are reading in a requirement that just isn't there. These clauses can also be harmonized by considering FAR 52.222-41(c)(3), which states:

Quote

Adjustment of compensation. If the term of this contract is more than 1 year, the minimum monetary wages and fringe benefits required to be paid or furnished thereunder to service employees under this contract shall be subject to adjustment after 1 year and not less often than once every 2 years, under wage determinations issued by the Wage and Hour Division.

This is not conditioned on attaching a new wage determination to the contract. The adjustment is conditioned on the length of the contract and the issuance of wage determinations by the Wage and Hour Division subsequent to the original contract award. I think a more harmonious interpretation of paragraph (c) is that  the wage determination attached to the contract document applies upon award, but is subject to later adjustment upon the occurrence of the conditions stated in (c)(3).

I haven't researched it, but your interpretation may also ignore paragraph (b), which states:

Quote

Applicability. This contract is subject to the following provisions and to all other applicable provisions of 41 U.S.C. chapter 67, Service Contract Labor Standards, and regulations of the Secretary of Labor (29 CFR Part 4). 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.

Are these statutory and regulatory provisions predicated on the contracting officer modifying multiple year contracts to attach updated wage determinations?

Retreadfed said:

Finally, the FAR is a regulation that has the force and effect of law.  Thus, it is as binding on contractors, contracting officers and DoL as a statute would be.

Please clarify this in light of FAR 1.104

”The FAR applies to all acquisitions as defined in  part  2 of the FAR...”

And 

”The FAR applies only to federal agencies, while the contract applies to both the agency and the contractor.”

Retreadfed said:

Finally, the FAR is a regulation that has the force and effect of law.  Thus, it is as binding on contractors, contracting officers and DoL as a statute would be.

Jamaal Valentine said:

Please clarify this in light of FAR 1.104

”The FAR applies to all acquisitions as defined in  part  2 of the FAR...”

”The FAR applies only to federal agencies, while the contract applies to both the agency and the contractor.”

The FAR  is not binding on contractors in the sense that it does not direct or require contractors to act or refrain from acting in specified ways. The FAR requires government personnel conducting or participating in acquisitions to act or refrain from acting in specified ways.

Solicitations require contractors to act or refrain from acting in specified ways as a condition of having their bids or proposals considered. Contracts require both parties to act or refrain from acting in specified ways.

However, because parts of FAR have the force and effect of law, contractors are charged with knowing what FAR requires of government personnel. That is the thrust of the Christian Doctrine:

Quote

Like other individuals who deal with the Federal Government (see, e.g., Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S. Ct. 1, 92 L.Ed. 10 (1947)), potential contractors can validly be bound to discover the published directives telling them the limits and the scope of the agreements the Government can make.

G.L. Christian and Associates v. The United States, 320 F.2d 345, 351, July 12, 1963

When the Christian Doctrine applies, a contractor who enters into a government contract will be bound by what FAR required of the government personnel.

Don Mansfield said:

These clauses can also be harmonized by considering FAR 52.222-41(c)(3),

Don, the clauses at issue are 52.222-41 and 52.222-43.  You did not state what possible conflict between these two clauses can be harmonized by considering 52.222-41(c)(3).  However, I perceive an internal conflict between 41(c)(1) and 41(c)(3) that I do not think you addressed.  Under (c)(1), the contractor is required to pay its service employees not less than the wages and fringe benefits set forth in the WD attached to the contract.  Under (c)(3), these wages and fringe benefits are to be "subject to adjustment after 1 year and not less often than once every 2 years, under wage determinations issued by the Wage and Hour Division."  You have not addressed how that adjustment is to take place.  Reading 52.222-41 as a whole, it is clear that the adjustment is to be accomplished by the contracting officer attaching a new wage determination to the contract.  Not only is this indicated by (c)(1), but also by 41(d) which states in part that " The Contractor or subcontractor may discharge the obligation to furnish fringe benefits specified in the attachment."  The "attachment" referenced here is the WD described in (c)(1).  Similarly, 41(e) provides that "In the absence of a minimum wage attachment for this contract," the contractor shall pay its employees not less than the minimum Federal wage.  To me, this clearly indicates that the contractor's obligation is to pay its service employees the wages and fringe benefits called for by the wage determination attached to the contract.  Further, it is the contracting officer's duty to ensure that the correct wage determination is attached to the contract.  I do not see anything in 52.222-41 or 43 that requires the contractor to pay its service employees the wages and fringe benefits that are contained in a WD that is not attached to the contract.

As for 52.222-41(b), I do not see anything in the statute, particularly 41 U.S.C. 6703 that is contrary to my interpretation.  As for DoL regulations, it is interesting to note that 52.222-41 is taken from 29 CFR 4.6.  Nothing in the DoL regs is inconsistent with what I have written above.

Carl, nothing in FAR 22.1015 relates to the question of whether a contractor is required to pay its employees not less than the wages and fringe benefits contained in a WD that is not attached to a contract.

Vern Edwards said:

When the Christian Doctrine applies, a contractor who enters into a government contract will be bound by what FAR required of the government personnel.

Yes. And we know or should know that the Christian Doctrine has a narrow application. Thus, my next question for @Retreadfed or others would be this:

Does the Christian Doctrine apply to clauses such as FAR 52.222-41?

It seems @Retreadfed believes the answer is yes. But can he prove or make a persuasive argument for it?

On 10/17/2022 at 5:17 PM, Retreadfed said:

I will presume that FAR 52.222-41 is incorporated in the contract, either physically or by operation of law.

*FAR 52.222-43 is incorporated by operation of law in any event pursuant to the "Christian Doctrine." Appeal of Costar III, LLC , 2011-2 B.C.A. (CCH) P34,830 (A.S.B.C.A. August 17, 2011).

@Retreadfed, How is omitting the correct wage determination from a contract different than omitting a required contract clause? Why wouldn't the applicable wage determination be read in to the contract by operation of law? Is the Government bound by the unauthorized inaction of its contracting officers?

Don Mansfield said:

@Retreadfed, How is omitting the correct wage determination from a contract different than omitting a required contract clause? Why wouldn't the applicable wage determination be read in to the contract by operation of law? Is the Government bound by the unauthorized inaction of its contracting officers?

See Spectrum American Contractors, ASBCA No. 33039, 87-2 BCA P 19864, May 4, 1987:

Quote

We followed the Christian doctrine, as it is come to be known, in BUI Construction Co. & Building Supply, ASBCA No. 28707, 84–1 BCA ¶ 17,183. That appeal involved a claim by the contractor for the difference between the amount it bid for labor costs and the amount it was required to pay under the Davis-Bacon Act wage determination of the Department of Labor. Appellant argued such wage determination should not apply because neither the solicitation nor the contractor's copy of the contract contained the standard Labor Standards Provisions or the wage determinations. In rejecting the contractor's claim, we noted:

"The Labor Standards Provisions and the Department of Labor wage determinations are statutory requirements for all construction, repair and rehabilitation contracts for federal public buildings in amounts over $2,000. (40 U.S.C. 276(a)) It is well settled that if a statute requires inclusion of a contract provision, such provision will be read into the contract by operation of law, and is binding on the parties even if omitted from the contract terms. G.L. Christian & Associates v. United States.... Obligatory congressional enactments cannot be abrogated by failure of Government officials to include necessary provisions in the contract.... The courts have also held that a contractor is charged with the knowledge of such mandatory requirements. [Citation omitted] Lack of actual knowledge does not extinguish a contractor's obligation to comply with the law.

Accordingly, we conclude that the wage determination schedule and the Labor Standards Provisions were binding on appellant from the contract's inception, and their omission from the solicitation did not constitute a contract change, entitling appellant to an equitable adjustment in contract price." (Id. at 85,578)

We see no reason why the results should be any different here where an outdated clause was included in the contract documents. There is no suggestion that anyone with authority to do so intentionally included the earlier clause in preference to the one mandated by regulation. Accordingly, a claim by appellant to recover the $2,000.00 withheld at the request of the Department of Labor must be dismissed for lack of jurisdiction.

Don't get excited. That's from one decision in 1987 by a board of contract appeals. I wouldn't make any broad claims based on it. I did not find another such case. I have not done complete research. I don't think the law is clear. I just thought you would like to see it.

Thanks @Vern Edwards

Retreadfed said:

Carl, nothing in FAR 22.1015 relates to the question of whether a contractor is required to pay its employees not less than the wages and fringe benefits contained in a WD that is not attached to a contract.

Let me offer how I untangle the web.  

FAR 22.1003-7 requires the CO to obtain a wage determination.   Or in other words determine if SCA applies.   But remember the USDOL (Sec of Labor) has the final say either way.

As noted in the case I already posted to this thread Sotera Defense Solutions the following excerpts apply - "The SCA clause cannot just be read into the contract under the Christian doctrine".... “The Christian doctrine is available only when relevant statutory or regulatory provisions are required to be included in an agency’s contracts.”  So if the agency says SCA applies AND USDOL agrees that SCA applies, it applies.  With regard to the contract to which this thread is about SCA was determined by the agency to apply, I see nothing about the USDOL disagreeing with the agency determination,  so I conclude that in application of Christian all other provisions of SCA are applicable or in other words an updated wage determination is required.

In my untangling of the web I then reach to 22.1015 where a WD is not attached to the contract, yet 52.222-41 and/or -43 are included in the contract indicating SCA applies. USDOL agrees per say.  This being true the contractor is required to pay the appropriate wage absent the wage determination as it applies since SCA was determined at the outset to apply to the contact and therefore the contractor must pay the required wages and  is afforded, by 22.1015 the opportunity to seek an equitable adjustment.   Or in other words 22.1015 aligns with application of case law, the Christian Doctrine.

Retreadfed said:

I do not see anything in 52.222-41 or 43 that requires the contractor to pay its service employees the wages and fringe benefits that are contained in a WD that is not attached to the contract.

In my untangling I have already made reference to USDOL.   I believe you have overlooked  paragraph (b) of the clause.   Paragraph (b) points to 29 CFR 4 and it is clear that that the CFR leaves final determination of application of a wage determination, whether in the contract or not, to the USDOL.  

All said I will pose the question I already did a little more specifically.  Can you provide a reference where a CO failed to include a current wage determination in a contract and the USDOL found that the wage determination did apply yet the agency prevailed because if failed to include it and the contractor was not required to follow the wage determination that USDOL said applies?

Don Mansfield said:

@Retreadfed, How is omitting the correct wage determination from a contract different than omitting a required contract clause? Why wouldn't the applicable wage determination be read in to the contract by operation of law? Is the Government bound by the unauthorized inaction of its contracting officers?

    https://casetext.com/case/call-henry-inc-v-united-states

"Although not outcome determinative in this case, there is some confusion regarding which FAR price adjustment provisions and contract clauses apply to this dispute. Because this contract was entered into on April 23, 2003, the contract is governed by the FAR provisions and clauses that were in effect on that date. Accordingly, Call Henry's NASA contract is governed by the clauses and provisions in effect as of April 23, 2003. 48 C.F.R. §§ 1.108(d) ; BearingPoint, Inc. v. United States, 77 Fed.Cl. 189, 193–94 (2007).
Pursuant to the Christian doctrine, the mandatory SCA clauses applicable to this contract are incorporated by reference, as those clauses reflect congressionally enacted, deeply ingrained procurement policy. G.L. Christian & Assocs. v. United States, 312 F.2d 418, 426 (Ct. Cl. 1963) ; General Eng'g & Mach. Works v. O'Keefe, 991 F.2d 775, 779-780 (Fed. Cir. 1993); John Cibinic, Jr. , James F. Nagle & Ralph C. Nash, Jr. , Administration of Government Contracts 23-24 (5th ed. 2016).
Accordingly, even though Call Henry's contract with NASA incorporates only FAR 52.222-44, which applies to single-year contracts, this contract dispute is nevertheless governed by FAR 52.222-43, which applies to multi-year and option contracts."

It’s seems simple to me. 

There is a WD in the contract. 
The KO is required to add the updated WD. It may be retroactive.
The contractor then has to pay the applicable rate for the applicable period. 

The KO must adjust the contract price if the labor cost cost to the contractor (no G&A or profit) is higher or lower due to the new WD, including retro active payments.

I assume that the issue currently at hand in this wild thread is Don's suggestion that the Christian Doctrine could be applied to incorporate a wage determination into a contract.

The following quote is from and old bid protest decision of the U.S. Claims Court (not the current Court of Federal Claims, but the predecessor to the Court of Appeals for the Federal Circuit) and dealt with a sealed bidding procurement, a construction contract, and the Davis-Bacon Act, not the Service Contract Act. It may be instructive with regard to the application of the Christian Doctrine to incorporation of a wage determination into a contract.

The situation was as follows:

The apparent low bidder had failed to acknowledge an amendment that added a new wage determination to the IFB and changed some specifications. The apparent low bidder demanded that the agency treat the matter as a minor informality or irrregularity, asserting that the cost impact of the amendment was minor. The agency sought an advance decision from the GAO.  The GAO said that the failure to acknowledge the amendment in the instant case could be treated as a minor informality, since the cost impact of the unacknowledged amendment was "de minimis" and the bidder had otherwise agreed to be bound by it, since it had agreed to be bound by the Davis-Bacon Act clause. See United States Department of the Interior—Request for Advance Decision, 64 Comp. Gen. 189, B-217303, 85-1 CPD ¶ 34, January 11, 1985. That decision did not address the applicability of the Christian Doctrine.

The second low bidder protested to the United States Claims Court, and was represented by one of the most distinguished government contracts lawyers who ever lived. The second-low asserted, on several grounds, that failure to acknowledge the amendment was not a minor informality.

The Claims court agreed that failure to acknowledge the amendment with respect to technical matters did not render the bid nonresponsive. However, it found that failure to acknowledge the change to the wage determination did render the bid nonresponsive, even thought the cost impact was minor, because the requirement was statutory. The low bidder, acting as intervenor, argued that it was bound to the new wage determination by virtue of the Christian Doctrine. The court decided as follows:

Quote

[I]ntervenor relies upon the doctrine enunciated in G.L. Christian and Associates v. United States, 160 Ct.Cl. 1, 312 F.2d 418, reargument denied, 160 Ct.Cl. 58, 320 F.2d 345, cert. denied, 375 U.S. 954, 84 S.Ct. 444, 11 L.Ed.2d 314 (1963), and known as the Christian Doctrine. Intervenor alleges that since the specific schedules were required by law to be in the solicitation, it shall be read in by operation of the Christian doctrine. This court does not agree.

The Christian doctrine has been applied essentially to clauses involving the government's administration of a contract (such as terminations, changes, and the like), but not to specific terms and specifications. Moreover, the clauses customarily encompassed by that doctrine have contained provision for compensation to the contractor for any increased costs (if not, in all cases, including profits or consequential damages). We know of no authority which would apply the Christian doctrine to a situation of this type or which would permit the reading into a solicitation of higher wage determinations (with no concommitent increase in the bid price).

Moreover, application of a doctrine of contract construction developed by the courts, such as the Christian Doctrine with respect to incorporation by operation of law, cannot be applied in direct conflict with the clear terms of the statute (and regulations) requiring physical incorporation. The provisions of the DBA are clear in this regard and, as the parties have noted, physical incorporation eliminates any uncertainty as to the specific rates applicable to a particular location or project. 29 C.F.R. § 1.6 (1984), provides that the expiration of a schedule of wage rate determinations may be extended or a new schedule requested as may be necessary to obviate a void between solicitation, bid opening, and contract award (subsection (a)(1)); moreover, project and general determinations which are revised or modified will be effective even if issued within 10 days of bid opening unless the agency reports that there is insufficient time to notify bidders, thereby assuring not only that the modifications are published but *272 that they are actually included in the solicitation prior to bid opening and contract award (subsections (c)(2) and (c)(3)). Finally, 29 C.F.R. § 1.6(f) provides that if a solicitation is missing a wage determination or contains an erroneous determination, the resulting contract may be terminated and resolicited or the proper determination may be applied retroactively with a change order issued to compensate the contractor. This provision would be rendered meaningless, and contractors deprived of deserved contract modification and price adjustment, if the courts, by operation of the Christian Doctrine, were to read into all solicitations (and resulting contracts) the current and correct determinations.

Moreover, application of a doctrine of contract construction developed by the courts, such as the Christian Doctrine with respect to incorporation by operation of law, cannot be applied in direct conflict with the clear terms of the statute (and regulations) requiring physical incorporation. The provisions of the DBA are clear in this regard and, as the parties have noted, physical incorporation eliminates any uncertainty as to the specific rates applicable to a particular location or project. 29 C.F.R. § 1.6 (1984), provides that the expiration of a schedule of wage rate determinations may be extended or a new schedule requested as may be necessary to obviate a void between solicitation, bid opening, and contract award (subsection (a)(1)); moreover, project and general determinations which are revised or modified will be effective even if issued within 10 days of bid opening unless the agency reports that there is insufficient time to notify bidders, thereby assuring not only that the modifications are published but that they are actually included in the solicitation prior to bid opening and contract award (subsections (c)(2) and (c)(3)). Finally, 29 C.F.R. § 1.6(f) provides that if a solicitation is missing a wage determination or contains an erroneous determination, the resulting contract may be terminated and resolicited or the proper determination may be applied retroactively with a change order issued to compensate the contractor. This provision would be rendered meaningless, and contractors deprived of deserved contract modification and price adjustment, if the courts, by operation of the Christian Doctrine, were to read into all solicitations (and resulting contracts) the current and correct determinations.

Hence, it is concluded that the Christian Doctrine will not operate so as to read into the solicitation the wage determinations contained in the schedule set forth in amendment 5 and not acknowledged by intervenor.

Game over. The court ruled in favor of the protester. Grade Way Construction, Inc. v. U.S., 7 Cl. Ct. 263, 271-272, Jan. 16, 1985.

Prior to the court decision, the GAO had issued an advisory decision on the matter that provides some background. See United States Department of the Interior—Request for Advance Decision, 64 Comp. Gen. 189, B-217303, 85-1 CPD ¶ 34, January 11, 1985. That decision did not address the Christian Doctrine.

I find this is interesting, but not determinative with respect to Don's suggestion.

Jamaal Valentine said:

Does the Christian Doctrine apply to clauses such as FAR 52.222-41?

I am not aware of any Fed. Cir. decision that addresses this question.  Further, the contract appeals boards seem to be is somewhat of a disagreement over this.  See this quote from Sotera "The SCA clause cannot just be read into the contract under the Christian doctrine, as USDA advocates. Respondent’s Brief at 10. “The Christian doctrine is available only when relevant statutory or regulatory provisions are required to be included in an agency’s contracts.” IBI Security Service, Inc. v. United States, 19 Cl. Ct. 106, 109 (1989) (citations omitted). Because the SCA requires a determination that it applies to a contract and, on this contract, to which labor categories, the Christian doctrine does not assist USDA."  This seems to be inconsistent with Costar.

The Christian Doctrine is very complicated and controversial in its application. No one should argue firmly about its application without first having done an awful lot of reading and thinking. Brief summaries of the doctrine are almost always incorrect to some extent.

I presume that the underlying question is whether the contractor is obligated to pay higher wages based upon a new wage determination even if the CO has not incorporated the new determination in to the contract.

I presume that the issue is whether (1) a new determination would be found to have been automatically incorporated into the contract by the language of FAR 52.222-41(c) or by virtue of the Christian Doctrine, and (2) the contractor would be bound to discover the new wage determination on its own and comply even if the CO did not comply with the requirement to modify the contract to incorporate it, and (3) failure to pay the higher wages would violate the Service Contract Act.

Is that where we stand?

Vern Edwards said:

Is that where we stand?

I will say yes but for #1 an and/or is because USDOL says the wage  determination applies.

C Culham said:

because USDOL says the wage  determination applies.

@C CulhamCarl, I know that you addressed that somewhere in this jungle of a thread, but I can't find it. Would you please cite where USDOL that the wage determination applies to a contract even if not included in the solicitation or the contract? Not the clauses, but the wage determination.

Thanks, Vern

Vern Edwards said:

I presume that the underlying question is whether the contractor is obligated to pay higher wages based upon a new wage determination even if the CO has not incorporated the new determination in to the contract.

I presume that the issue is whether (1) a new determination would be found to have been automatically incorporated into the contract by the language of FAR 52.222-41(c) or by virtue of the Christian Doctrine, and (2) the contractor would be bound to discover the new wage determination on its own and comply even if the CO did not comply with the requirement to modify the contract to incorporate it, and (3) failure to pay the higher wages would violate the Service Contract Act.

Is that where we stand?

Yes. Assume that the CO was required by regulation to incorporate the new wage determination, but didn't.

Vern Edwards said:

@C CulhamCarl, I know that you addressed that somewhere in this jungle of a thread, but I can't find it. Would you please cite where USDOL that the wage determination applies to a contract even if not included in the solicitation or the contract? Not the clauses, but the wage determination.

Thanks, Vern

FAR 22.1015.  I will try and find the back as to why the FAR says so.

I found the following DOL document from the Department of Labor Prevailing Wage Resource Book, entitled “SCA Wage Determinations”

https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/Tab14.pdf

It specifically and consistently states that the Contracting Agency is responsible to obtain the WD. I don’t know if a contractor can obtain it or look it up but am no expert.

joel hoffman said:

I don’t know that a contractor can obtain it or look it up but am no expert

Wage determinations are placed online by DoL.  It is common practice for agencies to identify the WD in a solicitation and contract without physically attaching the WD.  When this is done. the contractor is responsible for locating the specified WD online.

22.1015

Quote

If the Department of Labor discovers and determines, whether before or after a contract award, that a contracting officer made an erroneous determination that the Service Contract Labor Standards statute did not apply to a particular acquisition or failed to include an appropriate wage determination in a covered contract, the contracting officer, within 30 days of notification by the Department of Labor, shall include in the contract the clause at 52.222-41 and any applicable wage determination issued by the Administrator. If the contract is subject to 41 U.S.C. 6707(c), the Administrator may require retroactive application of that wage determination. The contracting officer shall equitably adjust the contract price to reflect any changed cost of performance resulting from incorporating a wage determination or revision.

@C CulhamAs I read that it says that if the CO failed to include an appropriate wage determination in a contract, and if the Administrator notifies the CO, then the CO shall add it. Then the Administrator "may' require retroactive application, in which case the CO must make an equitable adjustment. That does not say the wage determination automatically applies.

Agree?

Retreadfed said:

Wage determinations are placed online by DoL.  It is common practice for agencies to identify the WD in a solicitation and contract without physically attaching the WD.  When this is done. the contractor is responsible for locating the specified WD online.

Except for construction. FAR 22.404-2(b) (…Inclusion by reference is not permitted.).

Vern Edwards said:

22.1015

@C CulhamAs I read that it says that if the CO failed to include an appropriate wage determination in a contract, and if the Administrator notifies the CO, then the CO shall add it. Then the Administrator "may' require retroactive application, in which case the CO must make an equitable adjustment. That does not say the wage determination automatically applies.

Agree?

Sort of.  My view is first SCA applies.  CO is then to include the wage determination either per FAR or by DOL order.  I think the may plays off of a resulting investigation and finds everyone still paid in accord or not.  The may is for the nots.  Added is fact that the reference is worded as well to indicate the DOL makes the call not the CO.  Conclusion DOL holds the ace.

Splitting hairs SCA applies or not but a wage determination only applies to those that fit SCA categories an effort left to the contractor and if they error as determined by DOL the contractor is going to pay.  In my experience never saw it any other way for SCA (and DBA I might add).  I guess if DOL thought what was to be paid was minimal they might say forget about it.  As you noted earlier looking at DOL decisions and orders would tell the facts.

Retreadfed said:

Wage determinations are placed online by DoL.  It is common practice for agencies to identify the WD in a solicitation and contract without physically attaching the WD.  When this is done. the contractor is responsible for locating the specified WD online.

Are they not wrong in doing so?  See FAR 22.1018 and wording of WH 1313.  Looks to me the wage determination is to be provided

I think a wage determination applies when it is inserted in a contract, not before.

If a CO should have inserted a new WD, but didn't or won't, the DOL can require its inclusion, at which point the contractor must pay back wages due and may submit a claim for an equitable adjustment, IAW FAR 22.1015.

I do not think a contractor is obligated to discover a new WD and pay increased wages even though the CO hasn't done their job by incorporating the WD.

If anyone thinks I'm wrong, please cite a regulation or decision.

But if I were a contractor and were aware of a new WD, and if the CO told me what the CO told the OP, I would pay the higher wages, submit a claim demanding (1) that the CO mod the contract to add the WD immediately and (2) equitably adjust the contract price by a specified amount. I would do that to be decent to my workers. Why make them wait for back pay?

I would forward a copy of the claim to the CO's boss, to the CO's boss's boss, to the Head of the Contracting Activity, to the Head of the Agency, to the Secretary of Labor, and to my congressional representatives.

I would point out that because of the CO's dilatory conduct they will not only have to make an equitable adjustment, but also pay interest on the amount found due at taxpayer expense.

And I would post a copy of the letter to my congressional representatives at the workplace for all the workers to see, and I would urge them to write to their congressional representatives to complain.

Then I would tell my people to batten down the hatches and keep an eye out for, and document, retaliatory behavior.

I would teach the CO the meaning of "good faith and fair dealing."

@Vern Edwards, Do you think that the Christian Doctrine applies to the inclusion of FAR 52.222-41?

When this issue comes up for companies have have supported, we typically turn to 31.205-6(h).

Quote

Backpay. Backpay is a retroactive adjustment of prior years’ salaries or wages. Backpay is unallowable except as follows:

           (1) Payments to employees resulting from underpaid work actually performed are allowable, if required by a negotiated settlement, order, or court decree.

           (2) Payments to union employees for the difference in their past and current wage rates for working without a contract or labor agreement during labor management negotiation are allowable.

           (3) Payments to nonunion employees based upon results of union agreement negotiation are allowable only if-

                (i) A formal agreement or understanding exists between management and the employees concerning these payments; or

                (ii) An established policy or practice exists and is followed by the contractor so consistently as to imply, in effect, an agreement to make such payments.

(Emphasis added.)

So, no. Contractors do not automatically get to claim reimbursement of underpaid wages via submission of an REA, because the compensation costs are unallowable in most circumstances. I guess we can split hairs about what "negotiated settlement means" in this context but, in my experience, the phrase refers to a negotiated legal settlement--an interpretation that is supported by the other two circumstances in that same sentence.

Don Mansfield said:

@Vern Edwards Do you think that the Christian Doctrine applies to the inclusion of FAR 52.222-41?

@Don MansfieldThe Christian Doctrine is a legal doctrine applied by boards and courts, not by contracting personnel. It is not mentioned in the FAR. Since I have found no board or court decision that has ruled on the question, I don't "think" one way or another.

FAR 52.222-41 states the the contractor shall pay the wages and fringe benefits "as specified in any wage determination attached to this contract."

And I have cited and quoted an appellate court decision which held that the Christian Doctrine does not apply to wage determinations.

Now, if you have an argument to make, make it.

On 10/17/2022 at 2:17 PM, Retreadfed said:

Elguero stated that his contract is subject to the SCA.  Therefore, I will presume that FAR 52.222-41 is incorporated in the contract, either physically or by operation of law.

@Vern Edwards, Retreadfed's presumption was that FAR 52.222-41 could be incorporated in to the OP's contract by operation of law. I wasn't sure from your post whether you were agreeing or disagreeing with that presumption.

If we accept his presumption, then I think it would be inconsistent to argue that the applicable wage determination (the one that is supposed to be in the contract) would not also be incorporated by operation of law. 

If anyone thinks I'm wrong, please cite a regulation or an authoritative decision.

Don Mansfield said:

If anyone thinks I'm wrong, please cite a regulation or an authoritative decision.

I think you're wrong, and I already cited and quoted an authoritative decision: the 1985 appellate court decision in Grade-Way Construction v. U.S., 7 Ct. Cl. 263, 271:

Quote

The Christian doctrine has been applied essentially to clauses involving the government's administration of a contract (such as terminations, changes, and the like), but not to specific terms and specifications. Moreover, the clauses customarily encompassed by that doctrine have contained provision for compensation to the contractor for any increased costs (if not, in all cases, including profits or consequential damages). We know of no authority which would apply the Christian doctrine to a situation of this type or which would permit the reading into a solicitation of higher wage determinations (with no concommitent increase in the bid price).

Moreover, application of a doctrine of contract construction developed by the courts, such as the Christian Doctrine with respect to incorporation by operation of law, cannot be applied in direct conflict with the clear terms of the statute (and regulations) requiring physical incorporation.

Emphasis added. In other words, application of the Christian Doctrine to a wage determination that the implementing clause says must be "attached" to the contract would violate the terms of the clause. It would also violate provisions of 29 CFR Part 4, which say that the contractor must pay in accordance with the wage determination "attached" to the contract.

I say again, the Christian Doctrine does not apply to wage determinations. If you say it does, prove it.

Vern Edwards said:

I think you're wrong, and I already cited and quoted an authoritative decision: the 1985 appellate court decision in Grade-Way Construction v. U.S., 7 Ct. Cl. 263, 271:

That case is inapposite--the implementing clause was physically in the solicitation and contract, correct? Did the Court say whether or not the implementing clause could be read in pursuant to the Christian Doctrine?

Vern Edwards said:

I say again, the Christian Doctrine does not apply to wage determinations. If you say it does, prove it.

I don't think either of us can prove a position, but your claim is inconsistent with Spectrum American Contractors, ASBCA No. 33039, 87-2 BCA P 19864, May 4, 1987.

Don Mansfield said:

@Vern Edwards, Retreadfed's presumption was that FAR 52.222-41 could be incorporated in to the OP's contract by operation of law. I wasn't sure from your post whether you were agreeing or disagreeing with that presumption.

If we accept his presumption, then I think it would be inconsistent to argue that the applicable wage determination (the one that is supposed to be in the contract) would not also be incorporated by operation of law. 

If anyone thinks I'm wrong, please cite a regulation or an authoritative decision.

52.222.41 and 52.222-43 are already in the contract as is the original WD. 
Updating the WD per the -43 clause is a matter of contract administration, not contract formation.

The KO is not administering the contract in accordance with the contract terms.

The Christian Doctrine has nothing to do with contract administration.

joel hoffman said:

The Christian Doctrine has nothing to do with contract administration.

Uh, it's a doctrine of contract interpretation. In what way does it have nothing to do with contract administration?

Just now, Vern Edwards said:

Uh, it's a doctrine of contract interpretation. In what way does it have nothing to do with contract administration?

There’s nothing missing from the contract. The KO isn’t complying with the contract requirements to update the WD.

Don Mansfield said:

That case is inapposite...

No, it's not. You want to show that the Christian Doctrine can be used to incorporate a wage determination into a contract when it has been omitted. That case says you cannot, and it says why you cannot.

You apparently believe that if a clause that mentions a WD can be incorporated into a contract by operation of law, then the WD itself can be incorporated by operation of law. Grade Way says it can't, and it says why.

joel hoffman said:

There’s nothing missing from the contract. The KO isn’t complying with the contract requirements to update the WD.

What do those statements have to do with your assertion that the Christian Doctrine "has nothing to do with contract administration"? I don't believe that's what you meant. I think you just wrote carelessly. Think about it.

Vern Edwards said:

No, it's not. You want to show that the Christian Doctrine can be used to incorporate a wage determination into a contract when it has been omitted. That case says you cannot, and it says why you cannot.

No, I don't. I said that I thought it would be inconsistent to read in the implementing clause by operation of law, but not the applicable wage determination. That case sheds no light on that issue.

Don Mansfield said:

I said that I thought it would be inconsistent to read in the implementing clause by operation of law, but not the applicable wage determination. That case sheds no light on that issue.

Why should the case shed light on that issue? It says you can't do it. BTW, Spectrum was a BCA decision. The Claims Court was appellate, a higher level tribunal.

If you want to argue with the court, argue with the court. As far as I'm concerned, the issue you are raising is dead.

Now, I know you like to engage in Socratic questioning and seek inconsistencies, but we both know where that got Socrates. In any case, you haven't demonstrated an inconsistency.

Try tomorrow.

G'night.

Vern Edwards said:

Why should the case shed light on that issue?

Did I say it should? All I said was it didn't. The Court does not address the issue of whether the implementing clause can be read in by operation of law. So, it's inapposite.

Vern Edwards said:

What do those statements have to do with your assertion that the Christian Doctrine "has nothing to do with contract administration"? I don't believe that's what you meant. I think you just wrote carelessly. Think about it.

Probably so.

There’s nothing missing from the contract in this case. The clauses are there. The original wage decision is there. The KO simply isn’t complying with the contract requirements to update the WD.

It appears to me to be a matter of improper contract administration here. It’s not a matter of improper contract formation.

The OP wants to know if it is supposed to comply with the original WD that is in the contract in the meantime or an updated one and how to get the KO to update it.

The OP has retained legal representation and isn’t involved in the further conversation.

I don’t know how everyone went down a rabbit hole discussing missing clauses and missing wage decisions.

Ive had experiences with construction contracts being awarded with expired wage decisions that we had to update and adjust the contract price. It was a matter of contract administration to update the WD.

I haven’t had any experience with updating SCA wage decisions but I think the mechanics of the adjustment are similar.

Vern Edwards said:

No, it's not. You want to show that the Christian Doctrine can be used to incorporate a wage determination into a contract when it has been omitted. That case says you cannot, and it says why you cannot.

But didn't the ASBCA do this two years after the Court of Claims decision?

Carl Culham solved the problem a long time ago by pointing us to FAR 22.1015, which prescribes the procedure for dealing with a missing wage determination. That alone proscribes application of the Christian Doctrine, the use of which would violate that regulation.

Even if 52.222-41 were missing from the contract and incorporated by operation of law, FAR 22.1015 would proscribe application of the Christian Doctrine to incorporate the wage determination, since it prescribes a procedure to be followed in such a case. See also 29 CFR 4.5(c).

Further discussion of the Christian Doctrine is just barking up the wrong tree.

The contractor is not required to comply with a wage determination that is not attached to the contract. It is not required to look up a wage determination at its own initiative.

Don Mansfield said:

But didn't the ASBCA do this two years after the Court of Claims decision?

Yes. It erred, and in doing so it violated both FAR and 29 CFR, which prescribe a procedure to be followed in the case of a missing WD.

Thanks for sharing your opinion on the matter, Vern. Just don't mistake it for a fact.

I have stated nothing but facts, and have drawn my conclusion (opinion) from valid premises.

• If a wage determination is omitted from a contract covered by the SCA, the matter must be resolved pursuant to the procedure specified in FAR 22.1015 and 29 CFR 4.5(c).
• The wage determination was omitted from the contract.
• The matter must be resolved pursuant to the procedure prescribed by FAR 22.1015 and 29 CFR 4.5(c).

Why isn't my conclusion fact? Where's my error?

The procedure specified in FAR 22.1015 and 29 CFR 4.5(c) does not entail incorporation of the WD by operation of law. Moreover, incorporation of a WD by operation of law would deny the contractor the equitable adjustment provided for in FAR 22.1015 and 29 CFR 4.5(c). As pointed out by the Claims Court, in applying the Christian Doctrine a board or court cannot violate properly promulgated regulations.

@Vern Edwards @Don Mansfield

I quoted this before from Call Henry, Inc v United States, 855 F.3d 1348, 1351 n.1 (Fed. Cir. 2017).  I realize that it does not quote 52.222-41 specifically but it seems to encompass all "mandatory"  SCA clauses. 

"Although not outcome determinative in this case, there is some confusion regarding which FAR price adjustment provisions and contract clauses apply to this dispute. Because this contract was entered into on April 23, 2003, the contract is governed by the FAR provisions and clauses that were in effect on that date. Accordingly, Call Henry's NASA contract is governed by the clauses and provisions in effect as of April 23, 2003. 48 C.F.R. §§ 1.108(d) ; BearingPoint, Inc. v. United States, 77 Fed.Cl. 189, 193–94 (2007).
Pursuant to the Christian doctrine, the mandatory SCA clauses applicable to this contract are incorporated by reference, as those clauses reflect congressionally enacted, deeply ingrained procurement policy. G.L. Christian & Assocs. v. United States, 312 F.2d 418, 426 (Ct. Cl. 1963) ; General Eng'g & Mach. Works v. O'Keefe, 991 F.2d 775, 779-780 (Fed. Cir. 1993); John Cibinic, Jr. , James F. Nagle & Ralph C. Nash, Jr. , Administration of Government Contracts 23-24 (5th ed. 2016)."

Remember this was prior to Solara which I have also quoted and provided in the thread.  Solara changed the view of Christian at least in the CBCA view.   In Solara the CBCA decided "...The SCA clause cannot just be read into the contract under the Christian doctrine..." 

So  I think (but not sure as I have not gone back and read every one of my posts) and as Vern has recently stated (again I think) here is the deal.   SCA must first be determined to apply to the contract for Christian then to be used as a concept (hell I can't figure out what to call it but I know it is not in the FAR) to further decide on SCA obligations required of the contractor.

Example - SCA clauses in a contract but an agency does not update the wage determinations as required by SCA, Christian then applies as a concept.

Example - SCA never determined to be applicable to the contract at award.   Christian does not apply as a concept or at least not yet so (re)determined by a court, administrative or otherwise. 

Then what about the solicitation stage.  I did one quick search and found this right off the bat.   https://www.gao.gov/products/b-190505-1

All said and borrowing from and rewording a Vern post here is how I see it - 

 SCA applies when it is inserted by appropriate clause in a contract by a CO, or by the DOL due to investigative/enforcement action, not before. 

If for a SCA contract  a CO should have inserted a new WD, but didn't or won't, the DOL can require its inclusion. When inserted at which point the contractor must pay back wages due and may submit a claim for an equitable adjustment, maybe IAW FAR 52.222-43 at (f) and/or IAW FAR 22.1015.  A contractor has a duty to pay the required SCA wage even if the CO hasn’t done their job of inserting a new wage determination. IAW FAR 52.222-41 at (c) .

Bottomline - If I were a contractor I would get affirmation at the get go as to whether SCA applies to a proposed or awarded contract, either by noting that SCA (one of the required clauses) is in the solicitation contract or if not and I wonder I would ask in the solicitation stage and reconfirm at the award stage.  If I did not agree with the answer provided in the latter situation I would contact the USDOL for assistance and final determination of the CO's opinion.

Vern Edwards said:

The procedure specified in FAR 22.1015 and 29 CFR 4.5(c) does not entail incorporation of the WD by operation of law. Moreover, incorporation of a WD by operation of law would deny the contractor the equitable adjustment provided for in FAR 22.1015 and 29 CFR 4.5(c). As pointed out by the Claims Court, in applying the Christian Doctrine a board or court cannot violate properly promulgated regulations.

Wouldn't this also apply to the incorporation of FAR 52.222-41? FAR 22.1015 states:

Quote

the contracting officer, within 30 days of notification by the Department of Labor, shall include in the contract the clause at 52.222-41 and any applicable wage determination issued by the Administrator.

C Culham said:

Example - SCA clauses in a contract but an agency does not update the wage determinations as required by SCA, Christian then applies as a concept.

C Culham said:

A contractor has a duty to pay the required SCA wage even if the CO hasn’t done their job of inserting a new wage determination. IAW FAR 52.222-41 at (c) .

Your opinion differs from that of the DOL per the reference I previously provided the link to at: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/Tab14.pdf

“◊ The general public may also access the WDOL website at no cost to obtain available wage determinations for INFORMATION PURPOSES ONLY. The contracting agency is required to incorporate the applicable wage determination(s) into the contract. Thus, only those wage determinations inserted into the contract at award, or by modification, are applicable.”

“Multi-Year Procurement
◊ In the case of multi-year contracts subject to annual fiscal appropriations of Congress, the contracting agency must obtain a new wage determination each year for use on the anniversary date of the contract. 29 C.F.R. §§ 4.4(a)(1) and 4.145(a).
◊ If the multi-year contract is not subject to annual fiscal appropriations, the contracting agency must obtain a new wage determination and apply it to the contract at least every two years, on the biennial anniversary date of the contract. SCA§ 4(d), recodified at 41 U.S.C. § 6707(d), and 29 C.F.R. § 4.145(b).”

The OP’s firm has requested the KO to update the applicable wage determination but the KO said he/she was too busy…

And: from “52.222-41 at (c)” :  paragraph (c) says that employees shall be paid the wages and fringe benefit “…as specified in any wage determination attached to this contract.”

@C Culhamand @Don Mansfield Whew! The format of this discussion forum is driving me crazy. Typing into these little boxes is maddening.

Okay, so I have to respond to both Carl and Don. But I'm going to ignore anyone else who addresses me right now, because I've got real work to do.

I will take Don first and address Carl in a separate post.

@Don Mansfield

You keep asking about the applicability of the Christian Doctrine (CD) to the SCA clause because you want to show that if it applies to the clause it would be inconsistent not to apply it to a WD. That's your Socratic questioning approach. I'm not sure how it would be inconsistent, and you have made no demonstration in that regard, but since you have quoted the ASBCA, Spectrum American Contractors, ASBCA No. 33039, 87-2 BCA P 19864, May 4, 1987, so will I, from a 1994 decision, BellSouth Communications Systems, Inc., ASBCA 45955, 94-3 BCA P 27231, September 27, 1994_:_

Quote

The Government argues that the “Christian Doctrine” requires us to read into the contract at award the Davis-Bacon Act clauses and wage determinations that were later added by Modification P00065. We disagree. The Davis-Bacon Act is not self-implementing. A determination must be made by the Government that a particular contract is covered by the Act before that contract is subject to the Act. See Universities Research Association, Inc. v. Coutu, 450 U.S. 754, 784 n. 38 (1981). Before award, the contracting officer determined that the BellSouth contract was not covered by the Act. That determination was made in good faith, it was concurred in by DOL, and was not reversed until three years later. In these circumstances, the Christian Doctrine is not applicable.

Well, the Service Contract Act is also not self-implementing. It, too, requires a determination that a particular contract is covered by the Act before that contract is subject to the Act. So if you rely on BCA decisions, there you go. It appears that at least in some circumstances the CD would not apply to FAR 52.222-41.

But in fairness to you and to me, I warned everyone earlier in this thread that board and court decisions about application of the CD in particular cases are all over the map. And my researches confirm me in that belief. I think it's one thing if in the case law we find a clear line of reasoning and decision. Then it makes sense to point that line out to others. While it's clear to me under that some tribunals would apply the CD to WDs and others would not, I have not found a clear line of reasoning and decision. Thus, I am in no position to assert one proposition or another. We can only argue among ourselves to no conclusion.

You asked me if I think that the CD applies to FAR 52.222-41. I demurred, but I will admit that I think it very likely. As for WDs, the Grade-Way decision on which I have relied, and which stated that the CD does not apply to WDs, and stated why, has not been overruled by the Federal Circuit and has been referred to by the Federal Circuit as recently as 2018. It was called "narrow." See K-Con, Inc. v. Sec'y of the Army, 908 F.3d 719, Nov. 5, 2018. Since it hasn't been overruled, and since its reasoning makes sense to me, I'm sticking with it.

In any case, as Joel has pointed out several times, 52.222-41 is in the OP's contract. Which brings me to Carl's proposition:

C Culham said:

A contractor has a duty to pay the required SCA wage even if the CO hasn’t done their job of inserting a new wage determination. IAW FAR 52.222-41 at (c) .

Vern Edwards said:

Which brings me to Carl's proposition:

Which is wrong, per the wording at paragraph (c).

C Culham said:

A contractor has a duty to pay the required SCA wage even if the CO hasn’t done their job of inserting a new wage determination. IAW FAR 52.222-41 at (c) .

@C CulhamSo, if I understand you rightly, if a new wage determination applies, but has not been added to the contract, the contractor is obligated to find it and comply with it, notwithstanding FAR 52.222-41(c), which states:

Quote

Compensation. 

(1) Each service employee employed in the performance of this contract by the Contractor or any subcontractor shall be paid not less than the minimum monetary wages and shall be furnished fringe benefits in accordance with the wages and fringe benefits determined by the Secretary of Labor, or authorized representative, as specified in any wage determination attached to this contract.

Emphasis added.

Do I understand you correctly?

FAR 52.222-41(c) does not say that, so you must have inferred it from something you see in that clause paragraph or something you have seen elsewhere. FAR Subpart 22.10 does not say that. 29 CFR Part 4 does not say that. So where does it come from?

I have searched the decisions of the Department of Labor Administrative Review Board (ARB). There have been 440 decisions about the SCA; 284 of them mention wage determinations. I have not found one that confirms the truth of the proposition that a contractor must pay in accordance with a wage determination that has not been attached to the contract. (Though there may be such a decision and I simply have not seen it.)

I have read two Briefing Papers by practicing attorneys: The Service Contract Act, BP 90-7, by Ginsberg, Abrahams, and English, June 1990, and Complying with the Service Contract Act, BP 01-09, by Donohue and Goddard, Jr., August, 2001. Neither states that a contractor has a duty to comply with a new wage determination before added to the contract by the CO. The latter states: "A contractor must comply with the wage determination originally included in its contract unless and until the CO modifies the contract to include a new or revised wage determination."

The exception is when a new WD will implement a new collective bargaining agreement.

Carl, I am not yet saying that you are wrong, but I am questioning what you said. I, too, have believed it. But I now question the truth of it. And I would like a simple statement from you about why you think it's true. You don't need to quote a bunch of stuff. Just say why you think it's true. But respond as you see fit.

Vern Edwards said:

Do I understand you correctly?

Yes.  Why?  Its not a "new" determination.  It is a revised.  The WD keeps it same number.  

I too can not find other reference but I would bet USDOL, as a result of investigation/enforcement would require the revised wage, if revised, be paid.

Also we all continue to overlook the "shall" required of a CO.   I just will say if a CO does not do a shall with regard to any contract requirement a contractor is off the hook!  I think not.

joel hoffman said:

Your opinion

Yes but you are quoting other than contract requirements.   In my view it is just advice not imperative.

joel hoffman said:

Which is wrong, per the wording at paragraph (c).

See my response to Vern.

C Culham said:

Why?  Its not a "new" determination.  It is a revised.  The WD keeps it same number.

But the "revised" determination is different, right? Even though it may have the same number (although given a new revision number and date), it's not the one that's attached to the contract until the CO attaches it. Right?

Vern Edwards said:

But

Thinking of it this way...

52.222-41 requires a WD be attached.   (c)(3) says compensation shall be subject to adjustment, right?    2 year contract revision issued by DOL, contractor ye shall comply.

Now to 52.222-43 which says nothing about the revised WD having to be with the mod , right?  Option or anniversary date contractor ye shall comply.

Interesting. Thanks.

Vern Edwards said:

Interesting. Thanks.

52.222-43 (f) says in part:

“(f) The Contractor shall notify the Contracting Officer of any increase claimed under this clause within 30 days after receiving a new wage determination unless this notification period is extended in writing by the Contracting Officer...”

The clauses at FAR 52.222-41 and -43 are both in the contract per the prescription for the -43 clause at FAR 22.1006. One must read both clauses together. The -43 clause doesn’t negate 52.222-41 (c) (“in any wage determination attached to this contract.”).

Yep. Thanks.

C Culham said:

Also we all continue to overlook the "shall" required of a CO.   I just will say if a CO does not do a shall with regard to any contract requirement a contractor is off the hook!  I think not.

This is a contract administration issue. The contractor would be responsible for paying its employees and for back pay within the effective period of the new wage determination. But the contract as well as the DOL’s literature say that the required pay and fringe benefits are to be attached to the contract.

However, it can’t be properly and timely reimbursed until the KO modifies to contract to incorporate the rates and the parties both act to adjust the price.

A PCO has a duty to actively administer a service contract or appoint an ACO and/or trained and qualified COR to administer and make arrangements to obtain updated wage determinations for their service contracts.

To answer Carl’s question, our Original Poster’s  company has done their part:

“In this case, we asked the CO if he was going to issue a mod to incorporate the new WD. and the answer we received (verbally) was basically that they are too busy and won’t be issuing mods to incorporate new WDs.”

Then, he/she performed some additional research.  They have further  questions and valid concerns about liability for voluntarily incurring increased costs without government direction and without a contract modification to cover the increased costs.

Then the OP initiated this thread, seeking answers to the company’s questions and concerns.

Finally, the OP has engaged legal advice, while we are debating what the actual contract requires the government and contractor to do, and whether the contractor must comply with a “for information only” wage determination that it can see online and that the KO refuses to modify the contract to include and adjust the price for any increased cost…

I’d say that the OP has done their part, so far.

joel hoffman said:

But the contract as well as the DOL’s literature say that the required pay and fringe benefits are to be attached to the contract.

However, it can’t be properly and timely reimbursed until the KO modifies to contract to incorporate the rates and the parties both act to adjust the price.

I do not think this is in keeping with the Sotera decision posted previously in this thread.   As a matter of good contract  hygiene it might be the the way to go but I believe the decision was clear if SCA is in the contract, and not the most current wage determination revision, the contractor is entitled to reimbursement.

The contractor is performing the contract and has engaged legal help.

Joel, you are now that lamp post you once mentioned. Carl's mind is made up. Move on. There's nothing more to see here.

Vern Edwards said:

Carl's mind is made up.

No my mind is not made up so please do not attempt to speak for me.  Thanks.   

With each and every post I read and research.   I will however move on because this is a similar case to statements I made about SCA sometime ago where in fact my documented discussions with DOL supported my view.

I will simply say this and then move on.   

If a CO fails to include a new wage determination revision in a contract modification to extend an option the contractor is not relieved of having to pay the rates in that revision.  DOL would tell them so.

PS - I have answered every one of your questions, as usual.  You however have not.  So much for good dialog to unravel premises made but not supported.  You it would seem are the one who has their mind made up, but I will leave it to you to confirm so or not.  So Vern what say you?

A very current example.   Where is this wording does DOL say the contract must be modified to make the EO applicable.  Taken from a SCA wage determination.

If the contract is entered into on or |With certain exceptions Executive Order |
|after January 30 2022 or the |14026 applies to the contract. |
|contract is renewed or extended (e.g. |The contractor must pay all covered workers |
|an option is exercised) on or after |at least $15.00 per hour (or the applicable |
|January 30 2022: |wage rate listed on this wage determination|
| |if it is higher) for all hours spent |
| |performing on the contract in 2022.

C Culham said:

No my mind is not made up so please do not attempt to speak for me.

I didn't speak for you. I spoke about you.

We have arrived at the point of reaching for extreme interpretations, e.g., the "revised" WD is not "new."  I see no point in continuing to argue endlessly with mania. But I will say that if you had gone to law school you would have been one relentlessly and frighteningly facile, drag-me-to-hell, better-call-Saul attorney, and I mean that as a compliment (of sorts).

Vern Edwards said:

Joel, you are now that lamp post you once mentioned. Carl's mind is made up. Move on. There's nothing more to see here.

I agree. My last post wasn’t meant to be an argument, merely a comment concerning what the contractor is currently doing. It’s shameful. The Contractor shouldn’t have to submit an REA or a Claim to get reimbursed because the KO won’t do his job. 

I’m done debating.

joel hoffman said:

I’m done.

Good. Me, too. I'm getting out of Dodge before the shooting starts. 😁

@C Culham

C Culham said:

You it would seem are the one who has their mind made up, but I will leave it to you to confirm so or not.  So Vern what say you?

Vern Edwards said:

Carl, I am not yet saying that you are wrong, but I am questioning what you said. I, too, have believed it. But I now question the truth of it.

C Culham said:

Now to 52.222-43 which says nothing about the revised WD having to be with the mod , right?  Option or anniversary date contractor ye shall comply.

That's been my understanding of how it works. When you have "Place of Performance Unknown at Award" (in my case, "nationwide") the CO literally cannot provide wage determinations without the contractor requesting them.  The DOL site certainly makes it sound like federal contractors have a responsibility to comply with WD's regardless of whatever their contract may or may not say.  It makes sense: would DOL want to adjudicate terms of a contract every time they cite a vendor for SCA violations related to that contract? Probably not.  (e.g., I have a branch chief who considers himself God's Gift to Contracting and therefore has granted himself the exclusive right to make up T's & C's and insert them in random places throughout a contract. I have no doubt he's re-written SCA clauses to fit his demented worldview. This guy thinks 16.505 Orders against a SA IDIQ is 'source selection' so I wouldn't put anything past him.)  My point being that DOL needs a straight line to enforcing WD's that doesn't rely on a winding path through contracts of questionable legal sufficiency. 

There's also the 'living document' principle similar to a QASP in that it's expected to change and as long as you have the proper QA clauses in the contract which reference the QASP, the fact the actual source document is not incorporated into the contract is irrelevant.

The burning question in my mind is why DOL doesn't just publish the rates publicly and why my contract doesn't just say "comply with the published rates". What is the point of playing hide-the-ball with DOL wage determinations?  My "nationwide" wage determination files were so big they almost broke the internet when we tried to email them to the vendor.  So 1990's.

REA'n Maker said:

The DOL site...

What DOL site?

REA'n Maker said:

The burning question in my mind is why DOL doesn't just publish the rates publicly and why my contract doesn't just say "comply with the published rates".

Maybe that's not what they mean.

Well as it goes I could not move on. 

I spent the better part of a day reading the whole of 29 CFR 4, including every case law reference in the CFR that I was able to find.  I did so based on this reference -  "Rulings and interpretations of the Service Contract Act of 1965, as amended, are contained in Regulations, 29 CFR part 4."  Interpretations is what caught my eye.  

 I won't waste anyone's time in providing every excerpt I found that I thought applied to the discussion in this thread.   The question raised and answered in my read (yes and it is by MY read)  is if a contract is subject to the SCA the contractor will be found by the USDOL to have the obligation to observe SCA and the most current wage determination inclusive of revision regardless of whether a CO does what SCA and 29 CFR 4 requires the CO shall do.

And just some other idle thoughts based on the most recent comments posted and beyond.

29 CFR 4.1a - It would seem WDOL and SAM.gov for finding wage determinations are defined as the appropriate Web site.

29 CFR 4.4(c)(3)  About the WDOL

29 CFR 4.5(a)(3) About the WDOL

29 CFR 4.5(c) - Interesting cases to read.

Reference - https://www.ecfr.gov/current/title-29/subtitle-A/part-4#p-4.4(c)

C Culham said:

The question raised and answered in my read (yes and it is by MY read)  is if a contract is subject to the SCA the contractor will be found by the USDOL to have the obligation to observe SCA and the most current wage determination inclusive of revision regardless of whether a CO does what SCA and 29 CFR 4 requires the CO shall do.

I agree with that. But where I think we may part company is that I believe the contractor will not be found to have violated the SCA because it did not pay increased wages and fringes in accordance with the revised WD before the CO attached it to the contract. I think what will happen is that after the CO attaches the revised WD to the contract the contractor will have to pay the increases back to the WD's effective date, and the contracting agency will have to make an equitable adjustment back to that date.

I knew you would do more research. Good for you! I did more research, too, and was unable to find any DOL decision holding that a contractor is obligated to pay the increased wages and fringes in a revised WD before the revised WD is attached to the contract, or that a contractor that had not done so had violated the SCA.

And I found the following, writTen by a partner at the prominent law firm Piliero Mazza, which has represented government contractors hundreds of times before the GAO, the boards of contract appeals, and the Court of Federal Claims:

Quote

How New Minimum Wage and Service Contract Act Health and Welfare Rates Apply to Your Contract

As we head into a busy proposal and award season, keep in mind some important changes to Service Contract Act (“SCA”) wages and fringe benefits. In July, the Department of Labor (“DOL”) issued revised SCA health and welfare (“H&W”) benefit amounts, increasing the base rate from $4.41 per hour to $4.48 per hour. An H&W rate of $4.18 per hour is now applicable to employees performing work on contracts that include FAR 52.222-62, Sick Leave for Contractors...

* * *

1. Should I increase H&W rates on all of my SCA contracts now?
No. Although the new wage determinations will be issued by DOL, the only H&W rate that is applicable to your contract is the rate that is on the wage determination incorporated into the government contract on which the employees are working. These new wage determinations are not effective until one is incorporated into your contract by modification.

https://www.pilieromazza.com/how-new-minimum-wage-and-service-contract-act-health-and-welfare-rates-apply-to-your-contract/

Vern Edwards said:

where I think we may part company

I agree.   

My twist.   I think that the contractor would be found in violation by USDOL because SCA was initially (clause in contract but not most current WD) found to be applicable to the contract.   What comes after, and it seems most case law deals with, is whether contractor will be granted an equitable adjustment to the contract as a result of having to pay higher wages as a result of the WD.    FAR 22.2015 provides guidance on the EA but only if the CO erroneously did something.  Some of the cases in the 29 CFR 4.5(c) paragraph I referenced gets to the why 22.2015 provides what it does.

I appreciate the link.  I too, but not knowing of the historic relevance of the firm, found the following written by the same firm yesterday.   Seems to support of sorts my above even though it deals with the EO.

https://www.pilieromazza.com/dol-updates-language-on-service-contract-act-wage-determinations-again/ 

All said and in sorts in agreement with Piliero Mazza it would seem  a contractor should strive to confirm whether SCA is or is not applicable to the contract and if it  does, strive as well to confirm whether a new wage determination revision is applicable to a contract.  In doing so a contractor should do all communication in writing.  I think contractors and CO's alike do not strive to apply SCA as intended.   Like it or not it is a Federal regulation and duty and good faith suggest all should.

I think I am now ready to move on!

I don’t think the law firm’s discussion supports your view at all.

But I agree to move on. We’re not getting anywhere.

Again, good research by you.

On 10/22/2022 at 11:31 AM, Vern Edwards said:

I think what will happen is that after the CO attaches the revised WD to the contract the contractor will have to pay the increases back to the WD's effective date, and the contracting agency will have to make an equitable adjustment back to that date.

Because we are talking about a WD issued after a contract is executed, if 52.222-43 is in the contract and an option is exercised, wouldn't the contractor be entitled to a price adjustment calculated in accordance with that clause instead of an equitable adjustment if the contracting officer failed to include the revised WD in the contract at the time the option was exercised?

Retreadfed said:

Because we are talking about a WD issued after a contract is executed, if 52.222-43 is in the contract and an option is exercised, wouldn't the contractor be entitled to a price adjustment calculated in accordance with that clause instead of an equitable adjustment if the contracting officer failed to include the revised WD in the contract at the time the option was exercised?

That’s what the clause provides for (a price adjustment). Here the  company was awarded a multiple-year task order with a 5-year period of performance (no options).

Retreadfed said:

Because we are talking about a WD issued after a contract is executed, if 52.222-43 is in the contract and an option is exercised, wouldn't the contractor be entitled to a price adjustment calculated in accordance with that clause instead of an equitable adjustment if the contracting officer failed to include the revised WD in the contract at the time the option was exercised?

Yes. I should not have said "equitable adjustment," just price adjustment.

On 10/21/2022 at 4:06 PM, Vern Edwards said:

What DOL site?

Wage and Hour Division (WHD) | U.S. Department of Labor (dol.gov)

REA'n Maker said:

Wage and Hour Division (WHD) | U.S. Department of Labor (dol.gov)

DOL WAGE AND HOUR DIVISION

Prevailing Wage Resource Book May 2015

https://www.dol.gov/agencies/whd/government-contracts/prevailing-wage-resource-book

See #14 SCA Wage Determinations as cited long ago in a post:

https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/Tab14.pdf

I’m of the opinion that the Original Poster has by this point retained legal representation or has otherwise contacted DOL to request that it direct the KO to DO HIS JOB.

Edit:

[The OP probably can determine the estimated amount of any increased cost for this year’s wage adjustment. If the KO won’t add the updated WD, the OP can submit a claim for the increase.

I remember there was an ASBCA or Court decision probably 20 years ago where a contractor was awarded entitlement to interest on the total claim amount even before it incurred the total cost. I don’t remember the name or decision number just that I was surprised that interest was paid before the claim amount had been incurred. The OP’s lawyer can check it out.]

At any rate, we are beating a dead horse here.

joel hoffman said:

At any rate, we are beating a dead horse here.

Yes, but there is something very important to be learned here.

Several of us who have been most involved in this thread have been experienced COs who have administered many service contracts subject to the SCA (now SCLS), yet we have been unable to agree on how it works.

When enacted in 1965 and published in the Statutes-at-Large (79 Stat. 1034) the law was about 3-¾ pages long. Yet the FAR, DOL's regulations and other publications, and administrative and court decisions about the Act amount to  many thousand of pages of rules, guidance, and decisional case law.  I suspect that very few COs would call themselves experts in its implementation and administration. I certainly wouldn't.

This is typical of the rules governing the socio-economic programs, as we have seen in other debates here, including debates about the Buy American Act and the Trade Agreements Act.

On October 13, the DOL published a 58-page notice of proposed rulemaking in the Federal Register:

Quote

The U.S. Department of Labor (the Department) is proposing to modify Wage and Hour Division regulations to revise its analysis for determining employee or independent contractor classification under the Fair Labor Standards Act (FLSA or Act) to be more consistent with judicial precedent and the Act’s text and purpose.

Judging from the past, when the final rule comes out the Federal Register announcement will be much longer than 58 pages. All to determine the difference between an employee and an individual contractor.

On July 15, DOL published a 45-page notice of proposed rulemaking to implement the executive order about nondisplacement of qualified workers.

The acquisition system has been submerged by hurricanes of new political programs, laws, regulations, policies, and procedures that have little if anything to do with acquiring supplies, services, and construction. The acquisition workforce is being drowned in paper.

This is all par for the course, but most members of the American public have no idea about what has gone on and will continue go on. And no one knows whether the benefits exceed the costs. It doesn't seem to matter.

On 10/25/2022 at 8:37 AM, joel hoffman said:

I remember there was an ASBCA or Court decision probably 20 years ago where a contractor was awarded entitlement to interest on the total claim amount even before it incurred the total cost. I don’t remember the name or decision number just that I was surprised that interest was paid before the claim amount had been incurred.

Joel, there have been at least 4 such decisions by the Federal Circuit.  Those decisions are based upon the plain language of the CDA.  There is some confusion concerning those decisions.  In none has the court held that the contractor is entitled to recover interest on amounts in the claim that the contractor never incurs.  Instead, interest is only paid on costs the contractor actually incurs although interest will have accrued on the paid amounts before they are actually incurred.  For example, the contractor submits a claim for $10K before it has incurred any of the claimed costs.  In reality, the contractor only incurs $8K of costs, all of which were incurred after submission of the claim.  The contractor will recover interest on the $8K running from the date the contracting officer receives the claim until the $8K is paid by the government.

@joel hoffman @Retreadfed

See Servidone Construction Co. v. U.S., 931 F.2d 860, 862 (Fed. Cir., 1991):

Quote

Under 41 U.S.C. § 611 (1982) (Section 12 of the CDA), the Claims Court awarded Servidone interest on its damages from the date the contracting officer received Servidone's claim in March 1984. Section 611 states:

Interest on amounts found due contractors on claims shall be paid to the contractor from the date the contracting officer receives the claim pursuant to Section 605(a) of this title from the contractor until payment thereof.

This language clearly sets a date from which to compute interest on awards.

At the time it filed a proper claim, Servidone had yet to incur the total costs which it later recovered. Nonetheless Section 611 awards interest on any amounts later “found due ... from the date the contracting officer receives the claim.” This language sets a single, red-letter date for interest on all amounts found due by a court without regard to when the contractor incurred the costs. See Fidelity Constr. Co. v. United States, 700 F.2d 1379, 1385 (Fed.Cir.), cert. denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 103 (1983).

The CDA's legislative history confirms Congress's reasons for setting a red-letter date for interest. During the legislative process, the Senate's version of the CDA mandated that interest would run from the time the claim accrued or the additional costs were incurred, whichever was later. S.Rep.No. 95–1118, 95th Cong., 2d Sess. 32, reprinted in 1978 U.S.Code Cong. & Admin.News 5235, 5266. Congress declined to adopt this language. Instead, the Senate majority leader inserted in the record a prepared explanation of Congress's reasons for preferring the enacted version of Section 611:

"Section 12, Interest, is amended to address the concerns expressed by the executive agencies as well as the Armed Services Committee and the Justice Department that the determination as to “the date the claim accrues” could cause problems in defining the actual date when interest should start. There was added concern that contractors might delay submission of claims, thus not allowing the procuring agency the opportunity to review the claim at an early stage and possibly disposed [sic] of it. Because of these concerns, Section 12 has been amended. ... This will provide a specific date from which interest will be paid and serve as an incentive for contractors to submit claims as soon as they are identified."

124 Cong.Rec. S36267 (1978). This passage explains Congress's reasons for adopting an objective, bright line standard. Thus, Section 611' s standard for interest accrual effectively advances some of the main policies of the CDA—to expedite dispute resolution and to ensure fair and equitable treatment to contractors. 41 U.S.C. § 601 note (1988). The Claims Court correctly set the date from which interest on Servidone's damages should accrue.

Footnote omitted.

And that is one reason why COs should settle claims promptly, especially at today's 4% Treasury prompt payment and Contract Disputes Act interest rate.

Thanks, Retreadfed and Vern. 
Servidone Construction Company was the case I was thinking of. I might have a hard copy of it in my “Miscellaneous Good Stuff” file folder packed away for posterity. 🤠