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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. 
 

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4 hours ago, 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.

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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.

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1 hour ago, 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. 

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3 hours ago, 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?

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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.

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2 hours ago, 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.

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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

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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.  

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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.

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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.

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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

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2 hours ago, 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.”

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1 hour ago, 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.

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40 minutes ago, 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?

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52 minutes ago, 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.

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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. 

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1 hour ago, 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.

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6 hours ago, 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.

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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.

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22 minutes ago, 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?

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@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.

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@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!

 

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59 minutes ago, 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.  

 

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