Guardian

Carl, I appreciate that you read what I wrote and understand my point. I like the sequential nature of your suggested approach. It aligns with how I tend to process and discern language. I will use it.

252.204-7019 is a solicitation provision. Notice at the very bottom it reads "(End of Provision)." 252.204-7020 is a contract clause, the bottom of which reads "(End of Clause)." Both provisions and clauses are incorporated into solicitations. However, provisions are removed from (drop out of) the solicitation to create the ensuing contract. Provisions sometimes have parallel clauses. Provisions can be instructional and require the "offerors [pre-award]" to fill-in bracketed and underlined portions or check boxes to make self-certifying representatives. Clauses are incorporated into soliticitations and remain through the contract as governing conditions following award. If you are maintaining your assessments for an award to which you are a subcontractor, then read and follow the clause, 252.204-7020, not the provision, 252.204-7019. They may read substantially the same. Regardless, read and follow the information provided in the clause. Reach out to the prime contractor. Ask that they reach out to the Government CO for specific answers to your questions. They should be more than willing to help you. However, I recommend having the prime contact them after the end of the FY and with some breathing room to get through early October. They are very busy now. You don't sound dumb. The "dumbest" guy in the room, who is not afraid to ask questions, is often the wisest.

48 CFR § 252.204-7020(d)(1), states: Basic Assessments. A contractor may submit, via encrypted email, summary level scores of Basic Assessments conducted in accordance with the NIST SP 800–171 DoD Assessment Methodology to webptsmh@navy.mil for posting to SPRS. https://www.law.cornell.edu/cfr/text/48/252.204-7020 If you are submitting a basic assessment, the regulation does not make a distinction between initial and subsequent assessments in how they are to be submitting. Have you asked the prime contractor? If they do not know offhand, then they should email the administrative contracting officer. Agencies have acquisitions security offices that specialize in these matters. Does your contract state specific requirements about the NIST 800-171 assessment as a deliverable?

I don't question whether citing two authorities would be legally sufficient. However, I am not sure I see the point of citing the option clause. If we obtain the contractor's signature, is that not enough? The Government either has the unilateral authorization to exercise the option or it does not. If we wanted to invoke our unilateral right, shouldn't we first issue a mod bilaterally whereby the parties agree to the incorporation of a new clause, then cut a second mod unilaterally exercising the option? While I grasp the concept of taking two actions concurrently within a single mod, the fact of the matter is that the Government requires the contractor's signature to add conditions to the option as it was previously structured. Citing two authorities in one mod requiring the contractor's signature, one of which is unilateral, seems an attempt by the Government to illustrate that it has an authority, which it really does not absent the contractor's signature. Instead isn't it more accurate to say we are obtaining their signature agreeing to the change and extending the contract term for an additional year per the pricing captured in those particular CLINs associated with the option?

Thank you for the citation, Carl. I have another question based on a similar but different scenario. Let's presume that the only change the Government seeks to make is the addition of the ByteDance clause? Although this clause may incorporate itself by default via the Christian Doctrine, at my agency, we seek the contractor's signature whenever we add such clauses. I went back and read another post from 2011 in which the venerable Mr. Edwards addresses this topic. Per the explanation therein, the scenario above described would need to be considered vis-à-vis the "validity issue." As to whether we should cite two authorities in a mod under the above described circumstances, my contention is that we should be citing only one authority, that is, 52.212-4(c) or "mutual agreement of the parties," pick your poison. Even adding a clause such as the TikTok clause ("ByteDance") could present an added burden and expense to a contractor, which might affect their ability to perform work at pre-negotiated option prices to the extent that they realize a reasonable profit. For example, I know someone who owns a small business. They were required to install a ramp at their store's front entrance to comply with ADA. Seems simple enough. They ended up having to pay a carpenter $15,000 for the effort to meet the width requirements and other codified specifications. So then, what might a company have to pay to train their employees about prohibitions against ByteDance apps or confirm compliance with the removal of certain apps from their devices? I don't know. The above thread ("Exercise Options As Written," January 28, 2011) states that the parties to the contract "can bilaterally agree to modify an option prior to or concurrent with its exercise [emphasis added to the latter]. In practice, might that mean the Government should cite both the commercial items changes clause and the options clause as authorities on the same modification? Should the Government expressly state that the parties hereby agree to modify the terms of the option? If so, why not simply seek a signature citing the changes clause? After all, we cannot unilaterally exercise the option without first getting the contractor's approval and agreement to modify it. What then would be the point or effect of citing both clauses, as 52.217-9 is intended to be unilateral?

Specialists are submitting modifications to me, the purpose of which is to 1) "Exercise an option with a period of performance beginning 10/01, per the authority of FAR 52.217-9," 2) incorporate our agency-specific "subject to availability of funds" clause relative to the funding of that one year extension, and 3) incorporate the "ByteDance" clause at 52.204-27, per the prescription in FAR section 4.2203. As the CO authorized to sign these mods, I have instructed them to cite but one authority, which is "By the Mutual Agreeement of the Parties [as cited in 52.212-5(c)]." This was dicussed to some extent in an earlier WIFCon thread: The response has been that we can add clauses (further conditions), including a contigency stating that the action is SAF, but cite dual authorities for the mod, i.e., FAR 52.217-9 (for the "option") and mutual agreement of the parties for the other changes. I have referred my specialists to the definition of an option under part 2 of the FAR, explaining that it is strictly a unilateral authority or mechanism. One specialist insisted that we are not changing the terms of the option. But, we are. We are predicating the 12-month contract extension on the future availability of funds, which is not certain, and we are adding a material condition beyond a simple administrative change, that necessitates the contractor's signature. I have specialists and others telling me that options can be "bilateral," as at least one GAO precendent has established. I do not have enough support and information to accept these assertions. My perspective is that if we seek to effectuate material changes to the contract, then we cannot unilaterally exercise an option. We are instead mutually agreeing to extend the term of the contract for 12-months at the pricing and rates specified in CLINS 2001 through 2010 (for example). Is anyone aware of a GAO or court decision that sets a precedent contrary to my understanding of an option under these certain circumstances? Lastly, I am not quite sure what the point of incorporating 10/01 options in a contract is, given the above explanation of my understanding.

@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.

@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.

@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. 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.

@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.

@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.

@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

@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.

@Voyager The ABA expounds on change orders within the following link: https://www.americanbar.org/groups/construction_industry/publications/under_construction/2018/fall/construction-101/. You might also want to reference the definition of Change Order within FAR section 2.101. It's just my two cents, but if you are in doubt as to how you should proceed, might the safest solution be to have the contractor's authorized representative bilaterally agree to the changes as described on an SF30, within which the Government includes release of claims language, thereby further protecting itself?

@joel hoffman It seems that's what he meant. I have never seen the word "dribble" used to describe the flow of words. Its standard definition applies to liquids. I am simply another individual who enjoys this forum. In another life, I was a section editor of what was at the time one of the top four scholastic newspapers in the country. I was also editor-in-chief of my school's literary magazine. By no means does this render me an expert in anything or an apt judge of another's writings. Nonetheless, I have a strong interest in words and etymology. If I was that intelligent, I would speak six languages like another CO I know. When my false pride fools me into thinking that I am so smart, I remind myself that I do not. My wife speaks three. She is truly my better half.

@Vern Edwards I am questioning word choice here. Are you saying that what @Fara Fasatis expressing is being provided too slowly or that it is flat out foolish? dribble “Dribble” and “drivel” originally meant the same thing: drool. But the two words have become differentiated. When you mean to criticize someone else’s speech as stupid or pointless, the word you want is “drivel.” https://brians.wsu.edu/2016/05/25/dribble/

@Vern Edwards I agree. I love the reference to Gulliver's Travels. I am holding on to that word.

@ji20874 Yes, I see. It makes complete sense now. Thank you!

I get it, but no one can get around the fact that part 15 states, "in accordance with 15.503(b), shall be debriefed," and that 15.503(b) is the exact reference provided by 13.106-3 in the same sentence that discusses the supplier being entitled to a brief explanation of the basis for the contract award decision...."

@ji20874 I agree. "If a supplier requests information on an award that was based on factors other than price alone," I respond by giving what I document in the file as a brief explanation." However, my question is, why does part 15 refer to the procedures provided for that brief explanation together with the statement "in accordance with 15.503(b), shall be debriefed [FAR 15.506(a)(1)]"? I understand your point. But it's still a glitch in the language.

@Don Mansfield Carl stated that FAR 13 does not require debriefings. FAR paragraph 13.106-3(d) refers to a "brief explanation of the basis of the contract award decision [to be provided upon request]." That paragraph refers the reader to 15.503(b)(2), Postaward Notices, which states when "using [SAP] in part 13" the CO "shall furnish the information described in [15.503](b)(1). FAR subparagraph 15.506(a)(1) states that "in accordance with 15.503(b), [an offeror] shall be debriefed [emphasis added] and furnished the basis for the selection decision and contract award." FAR paragraphs 15.505(e) (pre-award) and 15.506(d) (post-award) ennumerate, at a minimum, what debriefings shall include. FAR 15.503, by its very title, provides guidance concerning "Notifications to unsuccessful offerors," not debriefings. However, FAR 15.506(a)(1) seems to associate the requirements for postaward notices described under 15.503(b) with a debriefing. I am just curious, why do you think that is?

15.506 Postaward debriefing of offerors. (a)(1) An offeror, upon its written request received by the agency within 3 days after the date on which that offeror has received notification of contract award in accordance with 15.503(b), shall be debriefed and furnished the basis for the selection decision and contract award. 15.503(b) Postaward notices. (2) Upon request, the contracting officer shall furnish the information described in paragraph (b)(1) of this section to unsuccessful offerors in solicitations using simplified acquisition procedures in part 13. 15.000 Scope of part. This part prescribes policies and procedures governing competitive and noncompetitive negotiated acquisitions. A contract awarded using other than sealed bidding procedures is a negotiated contract [emphasis added] (see 14.101).

@joel hoffman Understood. I got through school in part by working with brick masons, or as the Aussies might call them, "brickies." They referred to a pallet of brick as a "cube," which contains around 500 bricks. Cubes were typically made up of five individual straps. But I understand your point; the FAR contemplates no limit to how many "bricks" the Government might purchase as a commericial item supply.

@ji20874 That makes sense. So then, for instance, the Government could buy a few cubes of brick for their faculties personnel, who are federal employees, to build or repair a structure.

I am just curious, why do you think FAR section 2.101 defines Commercially available off-the-shelf (COTS) item by parenthetically including "construction material"? (1) Means any item of supply (including construction material) that is– (i) A commercial product (as defined in paragraph (1)† of the definition of “commercial product” in this section); (ii) Sold in substantial quantities in the commercial marketplace; and (iii) Offered to the Government, under a contract or subcontract at any tier, without modification, in the same form in which it is sold in the commercial marketplace.... †Commercial product means— (1) A product, other than real property, that is of a type customarily used by the general public or by nongovernmental entities for purposes other than governmental purposes, and– (i) Has been sold, leased, or licensed to the general public; or (ii) Has been offered for sale, lease, or license to the general public....