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Annie

SCA Wage Determinations for BOA Releases

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I work for a DOE M&O contractor. About 1 1/2 years ago, we issued a number of BOAs for staff augmentation services for positions that are subject to the SCA. We obtained a Wage Determination for the BOA solicitation, and all the BOAs incorporate the appropriate SCA articles and the applicable Wage Determination. We compete all positions among the BOA holders, and issue TOAs to the successful BOA holder. The TOAs incorporate all terms and conditions of the BOA via reference, and in addition, contains the following statement: By signature of its duly authorized representative below, Supplier certifies that it is in compliance with the Service Contract Act, as required by its applicable BOA per Article 15 - Service Contract Act - therein.

This approach was blessed by our lawyers. However, a subcontractor to DOE, who is considered an expert on the SCA, has stated that we should be obtaining a new wage determination for each release, because the BOAs are not subcontracts. We have been unable to find anything in writing that prohibits the approach we are using. Getting a new wage determination for each release would create a huge amount of extra work for us, and we do not have the personnel to handle it. Therefore, we would have to replace the BOAs with ID/IQ subcontracts (which is also extra work, but less cumbersome that individual wage determinations for each release).

I would appreciate any input on this!

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Your question is whether you should get a new wage determination for each "release"? Please define "release." That's jargon, not official terminology. Is a "release" an individual purchase under a BPA or is it something else?

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Sorry if I was unclear. The release is a Task Order Authorization that is issued in accordance with the ordering procedures in the Basic Ordering Agreements.

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I believe it is the Government's responsibility to include (using the E98 Process) the appropriate DOL Area Wage Determination into the Task Order. I believe the Government also has some responsibility to insure that the Offeror's comply with the minimum labor rates and H&W benefits cited in the Wage Determination. We have Offeror's propose Fully Loaded Labor Rates based on a range in the BOA, but we also request the labor rate build up with the respose to the Task Order Request. The rate build up is needed when we award options if a new Wage Determination is applicable at the time or Option award.

In Fixed Price, im unclear how we would prevent contractor buy-in if we didn't have the Wage Determination in the Task Order and the Labor Rate Buildup to insure compliance. Perhaps we are reading too much into this and should simply have Offerors "certifies that it is in compliance with the Service Contract Act"

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Okay. Speaking of the government, a BOA is not a contract. A contract is formed when the CO issues orders against the BOA and the contractor accepts. I assume that BOA means the same thing to you.

Dept. of Labor regulations require that every "contract" subject to the SCA contain a wage determination. Your subcontractor was telling you that you must obtain a wage determination for each order, and that you cannot incorporate a WD into the BOA. Based on the plain language of the DOL regulations, that's probably correct. The only way to find out for sure is to ask the DOL. They might say you can incorporate a WD into a BOA and apply it to orders issued thereunder.

However, if the BOA orders are issued as subcontracts to a government prime contract, and if you are flowing down the SCA clause down from that contract, then if that contract contains a WD you should be able to incorporate that WD into your BOA orders, rather than obtain a WD for each order. Do you understand what I'm saying?

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Vern, I appreciate your input. We will consider asking DOL the question.

The SCA is not applicable to our prime contract; however, "subcontracts awarded by the Contractor (us) are subject to the Act to the same extent and under the same conditions as contracts awarded by DOE." Consequently, we have to request Wage Determinations for each subcontract using the E-98 process, through our Contracting Officer. I wish our prime did include a WD that we could incorporate into our orders - it would make our life easier!

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Annie, just to be clear, are you the prime contractor? If that is correct, you have used what you are calling a "BOA" to obtain what in essence is subcontract work?

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Annie, the FAR description of the attributes of a BOA apply to the relationship between the government and prime contractor. They do not necessarily apply to arrangements between a prime and a sub. Basically, primes and subs are free to assign whatever attributes they want to their contractual arrangements other than a cost plus percentage of cost arrangement. Thus, it is possible that the way your "BOAs" are structured, they are not the same thing as BOAs described by the FAR. In other words, it is possible that your BOA is a contract and the releases are not separate contracts.

You said the approach you are using has been blessed by your lawyers. Maybe you need to find out from them what the real facts are regarding your "BOAs." In this regard, please read the last paragraph of Vern's post #5.

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The actual question at play here was whether or not the BOA used by the prime contractor to arrange for services from the subcontractor was the appropriate place to incoporate the applicable SCA wage determination. There are frequently multiple BOA's with contractors providing similar services. These agreements do not commit either party to do anything. They simply create an arrangement under which the two parties may choose to do business. In some cases, long periods of time may pass with no task orders being issued. Subsequently, if the SCA WD is incoporated into the BOA the possibility exists for someone to become employed and paid hourly wages and H&W rates based on a WD that is several revisions old. In this instance, it is the task order and not the BOA that serves as the contract and the government's recommendation to the contractor was to incorporate the governing WD into the task orders.

DOE submitted this question to the DOL, Wage and Hour Division. Their response was that the appropriate place to incoporate the WD is into the task orders.

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