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In a Navy, ID/IQ MAC award (Seaport-e) - what case or cases are available that support the Department of Labor imposing 52.222-41 Service Contract Labor Standards (Service Contract Act) upon task order issued under an ID/IQ MAC even though the Navy's express intent is that SCA is to be determined on a task order by task order basis by each cognizant contracting agency?

For example, DoD task order KO intentionally excludes clauses 52.222-41, 52.222-42, wage determination and any other Service Contract Act related clause in his/her contemplated task order and reinforces through RFP Q&A process with Offerors that Service Contract Act does not apply and no wage determination shall issue - principal purpose is determined to be 95% professional (e.g., engineering, logistics, configuration management, etc.)

FAR 52.222-41 is included in the prime MAC ID/IQ award - are ALL task orders therefore subject to 52.222-41 (through 52.216-18(b)) even though the ID/IQ scope has 20 different functional areas that the task order KO can choose from ranging from professional to service employees as well as CONUS and OCONUS (foreign military sales, etc.)?

I'm hearing rumors that DOL can impose 52.222-41 on all task orders not because of the principal purpose test, but because FAR 52,216-18(b) is present in the ID/IQ thus making all task orders subject to the terms and conditions of that contract and thus all task orders are subject to 52.222-41 regardless if the task order KO included the clause or not in the task order. I cannot find any cases on this matter one way or another. 

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I know this one because I do mostly IT services, which sometimes has a mix of exempt and non-exempt labor, and I primarily issue my It services as orders against IDIQ/IDC/GWACs.  So this issue come up. 

Summary: In the IDIQ/IDC contracts I am familiar with, the SCA (I also use SCLS) determination at the order level is independent from whether the IDIQ/IDC is covered by the SCA.

  • IDIQ has SCA clauses, but orders may be exempt from the SCA - GSA's Schedule contracts.
  • IDIQ does NOT have SCA clauses, but orders may  still be subject to the SCA - GSA's GWACs (8(a) STARS II, Alliant, VETS2).

In both cases, the ordering contracting officer  affirmatively determines that  this particular group of clauses is an exception to the usually flowdown per 52.216-18.    In the case of Schedule contracts (that have the SCA in them), the OCO is affirmatively determining the order is exempt.  In the case of the GWACs, the OCO is affirmately determining the order is NOT exempt, despite the base IDIQ having no mention of FAR 22.10 or its clauses.

In the case of an IDIQ that does have the SCA language, but also has functional areas that are obviously exempt from the SCA (like OCONUS), I would probably limit making a determination to edge-case orders, where its unclear if the SCA applies or not.

  • An order that is entirely OCONUS services needn't bother with an SCLS exemption. 
  • On the flip side, an order that is self-evidently covered by the SCLS - janitorial services - shouldn't have to include the clauses since the SCLS is definitely flowing down from the IDIQ to the order.

 

 

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The contract is not the final authority.  As I understand, the DOL can decide that a contract (order) is covered by the SCA even if the contracting officer disagrees and even if the contract (or order) does not contain the usual clauses or a wage determination.  See FAR 22.1015.

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Thank you both for your responses. Yes, I'm aware that DOL has final say.

Let me ask the question another way, is there any authority (case law?) that shows DOL imposing SCA upon a task order issued under a MAC ID/IQ award through the use of FAR 52.216-18(b) (or DFAR 252.216-7006(b))?

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I am not saying this will help you but try internet search for "DOL Field Operations Handbook, Chapter 14".  Para. 14c07?

With regard to DOL dont bank on rumors make the effort to find a DOL source that will help you.  Yes it will be a struggle but I believe with tenacity you can.

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