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I'm looking at a RFP.   The Gov't wants to buy labor on an IDIQ basis anywhere in the US.  One CLIN equals one labor category.  The Gov't is seeking a single hourly rate per CLIN.

A few wage determinations have been included in the RFP, but nowhere near all of them for the entire country. 

To help focus, let's say Manhattan is not covered by any of the wage determinations in the RFP.

After award of the IDIQ, how would the SCA rules apply if the Gov't wants to buy labor in Manhattan?

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1 hour ago, Retreadfed said:

Is FAR 52.222-49 in the RFP?

I wish I understood how that provision/clause is supposed to work.  The vendor can ask for any wage determination in addition to the ones named in the solicitation (based on what criteria?), even though the government admits the actual place of performance is unknown (so how did the CO pick the included wage determinations?), but regardless of actual place of performance, no price adjustments will be allowed to the proposed rate after award? 

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If the agency really wants contractor performance on an IDIQ basis anywhere in the US for work that is subject to the formerly-styled Service Contract Act, the contracting officer should apply for a nationwide wage determination.  The procedures for this are at https://www.dol.gov/whd/govcontracts/sca/sf98/instructions.htm.  Then, the solicitation will have only one wage determination.

Here's an example of a nationwide wage determination, dated 9/05/2017:  https://www.wdol.gov/wdol/scafiles/non-std/99-0316.sca.  Here's another one, dated 12/30/2016:  https://gacc.nifc.gov/nrcc/dispatch/equipment_supplies/agree-contract/WageDetermination.pdf.

The clause at FAR 52.222-49 is for use when the Government does not specify the place of performance, but this matter is left up to the offerors.  The clause allows offerors to request wage determinations for their specific locations before offers are submitted -- but if an offeror does not do this, too bad, then the wage determination for the appropriate locality will be added after award with no adjustment in contract price.  That's fair.   But this clause (FAR 52.222-49) is not appropriate in the original poster's circumstance, as I understand it; rather, the contracting officer needs to request a nationwide wage determination.

A nationwide wage determination is appropriate when a contractor will be dispatching people to any location in the country -- I am supposing this is the case for the original posting.  However, if the agency really requires permanent placement of employees at several locations in the country, then a wage determination for each locality is appropriate -- and it is the contracting officer's job to make this happen before solicitation release.

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On 10/30/2017 at 2:20 PM, Retreadfed said:

Look at FAR 22.1009-4.  That should help.

I had reviewed all the relevant prescriptions prior to making my post.  22.109-4 is just  a more detailed rendering of the clause (which reads like a provision as much as a clause....).   I'm trying to figure out: 1) what sort of bizarre scenario would lead the government to let the contractor define the possible place of performance, and; 2) why a contractor would  accept a risk such as an unknown place of performance.  

 

On 10/30/2017 at 2:44 PM, ji20874 said:

A nationwide wage determination is appropriate when a contractor will be dispatching people to any location in the country -- I am supposing this is the case for the original posting.

OK; now that makes sense.

 

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30 minutes ago, REA'n Maker said:

I'm trying to figure out: 1) what sort of bizarre scenario would lead the government to let the contractor define the possible place of performance, and; 2) why a contractor would  accept a risk such as an unknown place of performance.  

1) It need not be a bizarre scenario -- I think you are supposing that all service contracts must be performed in a Government facility, but this isn't true.  Sometimes, we don't care where the contractor does the work. For example, FAR 22.1003-5(k) lists maintenance and repair of all types of equipment as types of services that are covered by the SCA. Imagine an acquisition for the repair of cuckoo clocks: at the time of solicitation, we don't know where the future winner's facility is located -- we know where the incumbent is located, and we know where some prospective offerors are located, so we're in the situation covered by FAR 22.1009-2. But we admit that we don't know where the future winner's facility is located, so FAR 22.1009-4 applies. We follow the procedures in FAR 22.1009-4 and we include the clause at FAR 52.222-49 in the solicitation. It makes perfect sense.  It is common practice to let the contractor define the place of performance in situations where we won't require the work to occur in a Government facility.

2) In FAR 22.1009-4 and FAR 52.222-49, unknown place of performance means the Government doesn't know because the winner hasn't been selected yet, and the winner will perform the work in its own facility. Unknown place of performance, in the context of FAR 22.1009-4 and FAR 52.222-49, does not mean the contractor has no idea where its own people will be working after it wins the contract. An offeror responds to the clause at FAR 52.222-49 by responding to the contracting officer with its intended location by the established date, and the contracting officer gets a wage determination for that locality and includes it in a solicitation amendment.

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Thanks, ji, you beat me to the response.  I might add, that in this scenario, the contractor will not be sending its employees to God knows where to perform the contract, but the contract will be performed in the contractor's location(s).

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On ‎10‎/‎30‎/‎2017 at 6:52 AM, lotus said:

After award of the IDIQ, how would the SCA rules apply if the Gov't wants to buy labor in Manhattan?

Remember a contractor is responsible for compliance with SCA.  Absent a national wage determination (as noted in this thread), and/or a wage determination for a specific location where work will be performed a contractor should ask for a wage determination for the area where the work is being requested and then verify it is the appropriate one.  

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28 minutes ago, C Culham said:

Remember a contractor is responsible for compliance with SCA.  Absent a national wage determination (as noted in this thread), and/or a wage determination for a specific location where work will be performed a contractor should ask for a wage determination for the area where the work is being requested and then verify it is the appropriate one.  

I agree.  Really, a prospective offeror should insist that the solicitation include wage determinations covering all places where the Government requires SCA work to occur -- if the solicitation requires every town in the US, including Manhattan, then the WD (or combination of WDs) must cover every town in the US, including Manhattan.  See FAR 22.1007(a).  See also FAR 22.1008-1(c).  A prospective offeror who objects to a solicitation because of the absence of WDs might consider the approach described in FAR Subpart 33.1.

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There have not been many  (if any ) "on point" protests such as ji20874 suggested (alluded to). However, there was one that was close. See Aslco Forwarding, Inc., et al., B-277241 (1998), which dealt with a multiple award IDIQ contract. Pertinent excerpts:

Quote

Protests that Service Contract Act wage determinations issued with a solicitation for moving and storage services do not cover all localities where the services will be performed and all classes of service employees that may be utilized are denied, where the Department of Labor's determination that wage rates need only be established for the states from which shipments originate is not so unreasonable as to be contrary to law and where the protesters can avail themselves of established procedures for adding classes of employees to the wage determinations.

 
*     *     *
 
The protesters next contend that if the SCA does apply to this procurement, the statewide wage determinations issued for the three origin states do not encompass the localities in the CONUS destination regions where delivery services (such as unloading and unpacking) will be performed, and thus the wage determinations included with the RFP are incomplete.

Since the primary responsibility for interpreting and administering the SCA is vested in DOL, that agency's determination as to the manner in which the SCA will be applied is not objectionable unless so unreasonable as to be clearly contrary to law. Midwest Serv. and Supply Co. and Midwest Engine Inc., B-191554, July 13, 1978, 78-2 CPD ¶ 34 at 5.

Here, the record shows that the “locality” on which to base the wage determinations was the subject of discussions between the Army and DOL. The Army informed DOL that the contracts would be awarded on a channel basis from each origin state to destination region, explaining that a contractor would have to pick up shipments from any point within the origin states, possibly pick up additional shipments en route, possibly make partial deliveries en route, and provide delivery at destination, thus presenting the potential for a “bewildering” number of prevailing wage rate determinations for numerous areas of performance. In response, DOL recommended the use of statewide wage determinations for the origin states, which would apply to the services to be provided for any movements originating in each state regardless of where the services are in fact provided. MTMC was informed by DOL officials that contracts let by the United States Postal Service for the transportation of mail from and to multiple mail distribution centers follow a similar procedure, which avoids the assertedly incongruous result of requiring a different wage rate each time a carrier's covered employees cross into different localities. Based on DOL's advice, the contracting officer requested and obtained prevailing wage rate determinations for the three origin states. We cannot conclude here that the use of statewide wage rate determinations from the origin states for traffic channels emanating from those states is so unreasonable as to be clearly contrary to law, given the “elastic and variable meaning” of the term “locality” as used by DOL, 29 C.F.R. § 4.54(a), and DOL's responsibility for interpreting and administering the SCA. See Midwest Serv. and Supply Co. and Midwest Engine Inc., supra, at 5-7; The Cage Co. of Abilene, Inc., 57 Comp. Gen. 549, 553-554 (1978), 78-1 CPD ¶ 430 at 7-9.

 

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19 hours ago, ji20874 said:

For example, FAR 22.1003-5(k) lists maintenance and repair of all types of equipment as types of services that are covered by the SCA.

Thanks for the schooling on this topic.    Depot/Repair contracts make perfect sense in this scenario.  

My mind was locked into the scenario more akin to Vern's example, whereby services are being performed at the government's behest in changing locations, that are impossible to precisely  predict prior to award.  Always something new to learn in this business!

 

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