Don Mansfield

9 hours ago, 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:

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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.

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

54 minutes ago, 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?

18 minutes ago, 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.

1 minute ago, 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.

23 minutes ago, 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.

14 minutes ago, 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?

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.

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

1 hour ago, 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.

The applicable definition of "subcontract" is at FAR 44.101:

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Subcontract means any contract as defined in subpart  2.1 entered into by a subcontractor to furnish supplies or services for performance of a prime contract or a subcontract. It includes but is not limited to purchase orders, and changes and modifications to purchase orders.

Contract is defined at FAR 2.101:

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Contract means a mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise authorized, are in writing. In addition to bilateral instruments, contracts include (but are not limited to) awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; and bilateral contract modifications. Contracts do not include grants and cooperative agreements covered by 31 U.S.C.6301, et seq. For discussion of various types of contracts, see part  16.

So, if the prime truly has a BOA as described in the FAR, what they are saying sounds right.

It's number of pages in the CFR.

Thanks @Vern Edwards

@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?

7 hours ago, 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:

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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:

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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?

1 hour ago, Voyager said:

(4) Changes any of the expressed terms, conditions or specifications of the contract; or

Wouldn't this prohibit the COR from changing a due date for a deliverable? 

On 10/5/2022 at 12:12 PM, UnknownKnown1979 said:

Although this was my first post on WIFCON, I've perused the site for ten years. 

Vern and Don --- You gentlemen obviously truly care about this profession and I commend your service (both past and present) to mentoring us. To purchase and ship material to the newer generation speaks volumes to your sincerity. Just wanted to say "thanks", I guess.

You're welcome. Although, Vern is the one giving out awards.

About 20+ years ago, Vern posted a question here and offered a prize to the first person submitting a correct response. I got it right and he sent me a copy of The Source Selection Answer Book. It was a good question--I'll ask it after the current contest is over.

There's something wrong with BrettK's citation. Who can spot it?

@Guardian, if you were trying to make a point, I missed it.

Keep reading.

3 hours ago, GABE said:

i) The acquisition does not exceed the simplified acquisition threshold;
 

this seems clear. What am I missing?

Keep reading.

You could respond with: "As a policy, we notify the agency when we are not shown the final submission and inform them that we cannot vouch for any statements made about our company."

Those pesky company policies. What are you gonna do?

No, I said it doesn't get you out of posting a synopsis. 

2 hours ago, here_2_help said:

Adam Ruins Everything was an amazing show that still streams (on Hulu, I think). Here's a brief snippet from the show "Adam Ruins College".

Worth two minutes of your time, in my opinion.

 

This thread reminded me of that episode. I love that show.

What you're quoting doesn't get you out of posting a synopsis, if that's what you're asking.