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


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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

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1 hour ago, 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:

 

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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.

 

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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.

 

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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.

 

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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."

 

 

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15 hours ago, 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.

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1 hour ago, 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.

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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?

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15 hours ago, 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 R42826

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

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17 hours ago, 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.

 

1 hour ago, 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:

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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.

 

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15 hours ago, 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.

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8 hours ago, 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).

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@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?

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3 hours ago, 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:

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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.

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16 hours ago, 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.

16 hours ago, 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? 

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15 hours ago, 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."

 

 

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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.

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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:

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[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.

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18 hours ago, 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.

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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?

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19 minutes ago, 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

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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.

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2 hours ago, 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.

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