I have worked with Wage Determinations for a while, but have not been able to locate in the FAR and FAR Clauses where it states that you do not need a Wage determination for a requirement subject to the Service Contract Act for 5 employees or less. Am I correct in this following this guideline? If so, do you know where it is discussed? I am going to DOL's website to look, but if anyone knows I would appreciate knowing where it is discussed.

Thanks,

By Anonymous on Monday, April 02, 2001 - 08:29 am:

AS FAR AS i KNOW THAT GUIDANCE IS INCORRECT BUT YOU MAY WISH TO CONSULT 29 CFR pART 4.

By helper on Monday, April 02, 2001 - 11:12 am:

Years ago, we used the "5 employee or less" as a basis for not submitting SF98/98a's to DOL.

However, once we talked to DOL about it, they clarified that agencies need to file the SF98/98a for ALL services not otherwise exempt, but it is discretionary on the part of Labor to issue wage determinations for requirements that involve 5 or less employees.

By Loki on Wednesday, April 11, 2001 - 10:58 am:

It's in the SCA itself.

By Anonymous on Thursday, April 12, 2001 - 02:27 pm:

Loki

Where in trhe SCA is there an exemption for five or less?

By formerfed on Thursday, April 12, 2001 - 03:00 pm:

Not trying to speak for Loki, but sec 358 of the SCA requires DOL to make wage determinations. It established a sliding scale for various years. The last cited year of 1976 requires wage determinations for contracts with more than 5 employees. So I'm assuming that DOL isn't required to make one with less than 5.

Is this correct, Loki?

By Anonymous on Thursday, April 12, 2001 - 03:34 pm:

Then it is a DOL decision: in other words you would still file the 98 regardless of the number of employees and if DOL chose to issue the WD so be it. But you would not not file because you knew there would be less than five employees...right?

By formerfed on Thursday, April 12, 2001 - 03:39 pm:

I think the answer Helper gave above is correct - DOL doesn't have to do a wage determination for a contract with 5 or fewer. However, DOL often does one determination in an area and it can apply to more than one contract. I see where a contract with less than 5 might have another existing determination apply to it.

By Loki on Friday, April 13, 2001 - 04:52 pm:

If DOL has issued a written opinion requiring the wage d. request forms to be submitted for anticipated contracts which are expected to have 5 or fewer K. employees performing on them, then we'd have to give DOL's interpretation due deference and consider it controlling (I suppose.)

Is it in writing? I wouldn't accept a verbal policy from a field DOL office on this (and would also tell certain 1102 centered training firms to change their materials too.)

By Loki on Friday, April 13, 2001 - 05:19 pm:

Here's some case information that went to DOL which closes this chapter for me. It's cut and past so forgive the margins.

+++

] BOARD OF SERVICE CONTRACT APPEALS UNITED STATES DEPARTMENT OF LABOR
WASHINGTON, D. C.

In the Matter of:

FLORIDA TRANSPORTATION BSCA Case No. 92-03 SERVICE, INC., FEDERAL TRANSPORTATION SERVICES, INC., AND JOHN C. GORMAN, JR.

BEFORE: Charles E. Shearer, Jr., Chairman
Ruth E. Peters, Member
Anna Maria Farias, Member

DATED: August 31, 1992

DECISION OF THE BOARD OF SERVICE CONTRACT APPEALS

(move on to meat of it)

Under the Washington contract, Gorman admitted that he paid less than the required wage determination rate and paid no fringe benefits but argues that he believed that an exemption applied to his performance on the contract if he did not employ more than five workers. He claimed his belief was based upon his reading of 29 C.F.R. Subpart D ("Wage Determinations") 4.3(a) which, inter alia, states:

The minimum monetary wages and fringe benefits for service employees which the Act requires to be specified in contracts and bid solicitations subject to section 2(a) thereof will be set forth in wage determinations issued by the Administrator. Wage determinations shall be issued as soon as administratively feasible for all contracts subject to section 2(a) of the [SCA], and will be issued for all contracts entered into under which more than 5 service employees are to be employed.

The ALJ noted that in the overall context of the regulations, it was not reasonable for Gorman to interpret the reference to wage determinations for contracts employing more than 5 employees as an exemption. Clearly, as noted by ALJ Fath, the preceding sentence in 29 C.F.R. 4.3 states that all contracts subject to Section 2(a) of the SCA (regardless of employment numbers) shall have applicable wage determinations. Moreover, 29 C.F.R. 4.115 (Subpart C, "Application of the [SCA]") lists all allowable exemptions with specificity and does not include an exemption from coverage based on numbers of employees.