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SCA Exemptions


Timbuk2

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We have a requirement for software engineering support. While trying to determine whether or not the Service Contract Act would apply, I looked at FAR 22.1003-3 and 22.1003-4 and found nothing to justify an exemption.

However, 29 CFR § 541.400 states that “Computer systems analysts, computer programmers, software engineers or other similarly skilled workers in the computer field are eligible for exemption as professionals under section 13(a)(1) of the Act and under section 13(a)(17) of the Act”

Would you consider our requirement to be exempted base on the Title 29 reference? If so, why is this exception not expressly stated in the FAR? Am I missing something here?

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You need to read all of 29 CFR 541.300 and 400 to determine if the employees who will perform the services are not covered by the SCA. This is an example of where contracting personnel need to be aware that there are other regulations relating to procurement that they must be familiar with outside the FAR System.

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Here is a link to a DOL document to get you started on understanding the exemption.

http://www.dol.gov/whd/regs/compliance/fairpay/fs17d_professional.htm

Note also FAR Subpart 22.11 and its required, as appropriate, clause 52.222-26. Even without application of SCA with regard to professional employees of a contractor there are responsibilities of both the Government and contractor, as applicable, with regard to professional employee compensation.

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After reading 29 CFR is clear that the proffesional exemption applies to our action. Thank you all for your responses. I still don't understand why the FAR couldn't just list the proffesional employee exemption under 22.1003-3 and -4 though.

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After reading 29 CFR is clear that the proffesional exemption applies to our action. Thank you all for your responses. I still don't understand why the FAR couldn't just list the proffesional employee exemption under 22.1003-3 and -4 though.

Don't confuse "exemption" with "applicability." FAR 22.1003-1 says, "This Subpart 22.10 applies to all Government contracts, the principal purpose of which is to furnish services in the United States through the use of service employees, except as exempted in 22.1003-3 and 22.1003-4 of this section, or any subcontract at any tier thereunder. [emphasis added]"

If the principal purpose of your contract is to furnish services in the United States through the use of employees that are not service employees (for example, professional employees), then FAR Subpart 22.10 does not apply, and you you don't need an exemption. Exemptions are needed only for contracts the principal purpose of which is to furnish services in the United States through the use of service employees.

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