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taylor1234

52.222-43 added by contract Mod - New WD

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In our original contract it says:

Quote

Such changes will be cared for through escalations already identified in the contract, and no claim shall be made
either by the Contractor or the Government as a result of increases or decreases in Wage Determinations,
Conforming Wage Determinations, or changes to the minimum wage.  This clause does not relieve the Contractor
of its responsibility to pay a covered employee wages consistent with the Service Contract Act and Fair Labor
Standards Act in the event the escalation does not cover the total amount of the increase. 

 

However, in a later mod, they checked the 52.222-43 as being included in our contract. Has anyone seen this be added to a contract in a mod and be utilized? We received a WD recently that raises our rates substantially. It is a fixed rate contract and they do have an Escalation provision that is tied to BLS's ECI, but the WD increase wasn't a result of that. 

 

 

 

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Is FAR 52.222-41 in your contract?  What exactly do you mean by a fixed rate contract with an escalation provision?  Is the contract really an FP -EPA contract?

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Yes,sorry. A federal agency. 

Yes. 52.222-41 is in our contract. 

We are paid at a fixed rate. 

The escalation provision says, 

Quote

The Government has included an escalation methodology based upon the Bureau of Labor Statistics’ (BLS)
Employment Cost Index (ECI) for Total Compensation, Private Industry, Service Occupations (Not Seasonally 
Adjusted), to account for significant inflation and/or deflation. When the ECI exceeds 3.0% (plus or minus) in any
given year the Government will adjust the established common pricing by any amount in excess of this rate....

 

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Do you think this escalation provision is consistent with 52.222-41 and 29 CFR 4.143 and .145?  Is it a proper deviation from 52.222-41 and 52.222-43?

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Still trying to understand...

1.  So, you are saying that the -41 clause was included in the initial contract (along with the two blurbs you quoted) and that the -43 clause was added later by contract modification?

2.  Did you accept the initial contract?

3.  Did you accept the modification?

4.  Was a wage determination included in the initial contract?

5.  From whom and in what manner did you "receive" the updated wage determination?

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3 hours ago, taylor1234 said:

Such changes will be cared for through escalations already identified in the contract

Sidebar: is "cared for" a thing?

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46 minutes ago, Retreadfed said:

Do you think this escalation provision is consistent with 52.222-41 and 29 CFR 4.143 and .145?  Is it a proper deviation from 52.222-41 and 52.222-43?

Honestly, no idea. 

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Re:  No. 3 — do you accept the Government’s unilateral modification as proper and within the bounds of the contract?

Regardless, you seem to have a problem of conflicting texts within the contract.  The -41 clause (and the -43 clause) give you an entitlement to a contract price adjustment based on the new wage determination, and the other homemade clauses seem to deny that entitlement.

Do you want the price adjustment for the wage determination?  If so, you should follow the instructions in the clause to assert your right to an adjustment — if I recall correctly, your assertion is due 30 days after your receipt of the new wage determination.  If you’re still within the 30 days, you should submit your assertion according to the clause — then, the ball will be in the Government’s court either to grant the adjustment or deny it, based on its understanding of the law and the intent of the parties at the time of contract formation.  If you don’t like the Government's decision, you may file a claim under the contract’s Disputes clause.  But Step No. 1 is for you to make your assertion of entitlement according to the text of the -41 or -43 clause.

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On ‎6‎/‎21‎/‎2019 at 11:51 AM, taylor1234 said:

Yes,sorry. A federal agency

Sorry I would like to step back to this response.   Do you mind sharing what Federal Agency?  Asking as in some cases agencies via supplement to the FAR are allowed to use clauses that are not the standard found in FAR.   Knowing the agency would be helpful in responding further to your original question.

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16 minutes ago, taylor1234 said:

Yes. we definitely want the adjustment. 

Then you need to make the notification contemplated by para. (f) of the -43 clause (if that is the clause which entitles you to an adjustment).

 

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