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I found the following DOL document from the Department of Labor Prevailing Wage Resource Book, entitled “SCA Wage Determinations”

https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/Tab14.pdf

It specifically and consistently states that the Contracting Agency is responsible to obtain the WD. I don’t know if a contractor can obtain it or look it up but am no expert. 

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13 minutes ago, joel hoffman said:

I don’t know that a contractor can obtain it or look it up but am no expert

Wage determinations are placed online by DoL.  It is common practice for agencies to identify the WD in a solicitation and contract without physically attaching the WD.  When this is done. the contractor is responsible for locating the specified WD online.

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22.1015

Quote

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.

@C CulhamAs I read that it says that if the CO failed to include an appropriate wage determination in a contract, and if the Administrator notifies the CO, then the CO shall add it. Then the Administrator "may' require retroactive application, in which case the CO must make an equitable adjustment. That does not say the wage determination automatically applies.

Agree?

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38 minutes ago, Retreadfed said:

Wage determinations are placed online by DoL.  It is common practice for agencies to identify the WD in a solicitation and contract without physically attaching the WD.  When this is done. the contractor is responsible for locating the specified WD online.

Except for construction. FAR 22.404-2(b) (…Inclusion by reference is not permitted.).

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1 hour ago, Vern Edwards said:

22.1015

@C CulhamAs I read that it says that if the CO failed to include an appropriate wage determination in a contract, and if the Administrator notifies the CO, then the CO shall add it. Then the Administrator "may' require retroactive application, in which case the CO must make an equitable adjustment. That does not say the wage determination automatically applies.

Agree?

Sort of.  My view is first SCA applies.  CO is then to include the wage determination either per FAR or by DOL order.  I think the may plays off of a resulting investigation and finds everyone still paid in accord or not.  The may is for the nots.  Added is fact that the reference is worded as well to indicate the DOL makes the call not the CO.  Conclusion DOL holds the ace.

Splitting hairs SCA applies or not but a wage determination only applies to those that fit SCA categories an effort left to the contractor and if they error as determined by DOL the contractor is going to pay.  In my experience never saw it any other way for SCA (and DBA I might add).  I guess if DOL thought what was to be paid was minimal they might say forget about it.  As you noted earlier looking at DOL decisions and orders would tell the facts.

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2 hours ago, Retreadfed said:

Wage determinations are placed online by DoL.  It is common practice for agencies to identify the WD in a solicitation and contract without physically attaching the WD.  When this is done. the contractor is responsible for locating the specified WD online.

Are they not wrong in doing so?  See FAR 22.1018 and wording of WH 1313.  Looks to me the wage determination is to be provided

 

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I think a wage determination applies when it is inserted in a contract, not before.

If a CO should have inserted a new WD, but didn't or won't, the DOL can require its inclusion, at which point the contractor must pay back wages due and may submit a claim for an equitable adjustment, IAW FAR 22.1015.

I do not think a contractor is obligated to discover a new WD and pay increased wages even though the CO hasn't done their job by incorporating the WD.

If anyone thinks I'm wrong, please cite a regulation or decision.

But if I were a contractor and were aware of a new WD, and if the CO told me what the CO told the OP, I would pay the higher wages, submit a claim demanding (1) that the CO mod the contract to add the WD immediately and (2) equitably adjust the contract price by a specified amount. I would do that to be decent to my workers. Why make them wait for back pay?

I would forward a copy of the claim to the CO's boss, to the CO's boss's boss, to the Head of the Contracting Activity, to the Head of the Agency, to the Secretary of Labor, and to my congressional representatives.

I would point out that because of the CO's dilatory conduct they will not only have to make an equitable adjustment, but also pay interest on the amount found due at taxpayer expense.

And I would post a copy of the letter to my congressional representatives at the workplace for all the workers to see, and I would urge them to write to their congressional representatives to complain.

Then I would tell my people to batten down the hatches and keep an eye out for, and document, retaliatory behavior.

I would teach the CO the meaning of "good faith and fair dealing."

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When this issue comes up for companies have have supported, we typically turn to 31.205-6(h).

Quote

Backpay. Backpay is a retroactive adjustment of prior years’ salaries or wages. Backpay is unallowable except as follows:

           (1) Payments to employees resulting from underpaid work actually performed are allowable, if required by a negotiated settlement, order, or court decree.

           (2) Payments to union employees for the difference in their past and current wage rates for working without a contract or labor agreement during labor management negotiation are allowable.

           (3) Payments to nonunion employees based upon results of union agreement negotiation are allowable only if-

                (i) A formal agreement or understanding exists between management and the employees concerning these payments; or

                (ii) An established policy or practice exists and is followed by the contractor so consistently as to imply, in effect, an agreement to make such payments.

(Emphasis added.)

So, no. Contractors do not automatically get to claim reimbursement of underpaid wages via submission of an REA, because the compensation costs are unallowable in most circumstances. I guess we can split hairs about what "negotiated settlement means" in this context but, in my experience, the phrase refers to a negotiated legal settlement--an interpretation that is supported by the other two circumstances in that same sentence.

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55 minutes ago, Don Mansfield said:

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

@Don MansfieldThe Christian Doctrine is a legal doctrine applied by boards and courts, not by contracting personnel. It is not mentioned in the FAR. Since I have found no board or court decision that has ruled on the question, I don't "think" one way or another.

FAR 52.222-41 states the the contractor shall pay the wages and fringe benefits "as specified in any wage determination attached to this contract."

And I have cited and quoted an appellate court decision which held that the Christian Doctrine does not apply to wage determinations.

Now, if you have an argument to make, make it.

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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.

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13 minutes ago, Don Mansfield said:

If anyone thinks I'm wrong, please cite a regulation or an authoritative decision.

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:

Quote

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.

Emphasis added. In other words, application of the Christian Doctrine to a wage determination that the implementing clause says must be "attached" to the contract would violate the terms of the clause. It would also violate provisions of 29 CFR Part 4, which say that the contractor must pay in accordance with the wage determination "attached" to the contract.

I say again, the Christian Doctrine does not apply to wage determinations. If you say it does, prove it.

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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?

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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.

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33 minutes ago, Don Mansfield said:

@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.

52.222.41 and 52.222-43 are already in the contract as is the original WD. 
Updating the WD per the -43 clause is a matter of contract administration, not contract formation.

The KO is not administering the contract in accordance with the contract terms.

The Christian Doctrine has nothing to do with contract administration.

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Just now, Vern Edwards said:

Uh, it's a doctrine of contract interpretation. In what way does it have nothing to do with contract administration?

 

 

There’s nothing missing from the contract. The KO isn’t complying with the contract requirements to update the WD. 

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17 minutes ago, Don Mansfield said:

That case is inapposite...

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.

You apparently believe that if a clause that mentions a WD can be incorporated into a contract by operation of law, then the WD itself can be incorporated by operation of law. Grade Way says it can't, and it says why.

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3 minutes ago, joel hoffman said:

There’s nothing missing from the contract. The KO isn’t complying with the contract requirements to update the WD. 

What do those statements have to do with your assertion that the Christian Doctrine "has nothing to do with contract administration"? I don't believe that's what you meant. I think you just wrote carelessly. Think about it.

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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.

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13 minutes ago, Don Mansfield said:

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.

Why should the case shed light on that issue? It says you can't do it. BTW, Spectrum was a BCA decision. The Claims Court was appellate, a higher level tribunal.

If you want to argue with the court, argue with the court. As far as I'm concerned, the issue you are raising is dead.

Now, I know you like to engage in Socratic questioning and seek inconsistencies, but we both know where that got Socrates. In any case, you haven't demonstrated an inconsistency.

Try tomorrow.

G'night.

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2 hours ago, Vern Edwards said:

What do those statements have to do with your assertion that the Christian Doctrine "has nothing to do with contract administration"? I don't believe that's what you meant. I think you just wrote carelessly. Think about it.

Probably so.

There’s nothing missing from the contract in this case. The clauses are there. The original wage decision is there. The KO simply isn’t complying with the contract requirements to update the WD.

It appears to me to be a matter of improper contract administration here. It’s not a matter of improper contract formation.

The OP wants to know if it is supposed to comply with the original WD that is in the contract in the meantime or an updated one and how to get the KO to update it.

The OP has retained legal representation and isn’t involved in the further conversation.

I don’t know how everyone went down a rabbit hole discussing missing clauses and missing wage decisions.

Ive had experiences with construction contracts being awarded with expired wage decisions that we had to update and adjust the contract price. It was a matter of contract administration to update the WD.

I haven’t had any experience with updating SCA wage decisions but I think the mechanics of the adjustment are similar. 

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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?

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Carl Culham solved the problem a long time ago by pointing us to FAR 22.1015, which prescribes the procedure for dealing with a missing wage determination. That alone proscribes application of the Christian Doctrine, the use of which would violate that regulation.

Even if 52.222-41 were missing from the contract and incorporated by operation of law, FAR 22.1015 would proscribe application of the Christian Doctrine to incorporate the wage determination, since it prescribes a procedure to be followed in such a case. See also 29 CFR 4.5(c).

Further discussion of the Christian Doctrine is just barking up the wrong tree.

The contractor is not required to comply with a wage determination that is not attached to the contract. It is not required to look up a wage determination at its own initiative.

 

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