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Pilon

CBA - Overtime (WD price adjustments)

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Facts:  We have a contract with an incorporated Collective Bargaining Agreement (CBA) with clear language regarding Overtime and Standby hours.  CBA requires the contractor to pay CBA employees 1.5 overtime premium.  It also requires to pay a minimum standby pay of four hours even if the member only performed one hour of work.  Contract type: 

Issue:  We are trying to process a wage adjustment proposal based on actuals (this is the third one submitted - all previous ones accepted) and the new contracting officer does not recognize the CBA language and stated the following: 

Overtime premiums are not required under the SCA While all hours worked on the contract by covered workers are subject to an SCA adjustment for changes in minimum wages, including hours worked over 40 per week, such hourly rate adjustment would not include overtime premium such as additional half time for the hours over 40 per week. The straight-time portions of SCA or FLSA wage increases on overtime hours are properly reimbursable under a price adjustment claim. The premium portions of such wages are not reimbursable. Therefore, the overtime premium payments are viewed as within the contractor's control to entirely avoid. Furthermore, FAR policy discourages the use of overtime hours and the payment of such premiums under government contracts in 22.103.

Disconnect:  Although the CBA is under the rules of the SCA, CBA provides specific languages that we must comply and pay our employees. 

Help:  Looking for language / reference to support our entitlement. 

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For some insight into Government policy, practices and exception authority regarding overtime and CBA, see FAR 22.103 and paragraphs 4.11 & 5.4.7 of the U.S. Navy's Desk Guide for Service Contact Price Adjustments, Service Contract Act and Fair Labor Standards Act, Issued November 2010, reviewed December 2010. It's searchable on the internet...I just didn't find a link that my mobile browser would copy. 

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Important principle: The collective bargaining agreement is between the employer and the union. The government is not a party to the CBA. The CBA specifies what the employer must pay to its employees. It does not dictate what the government must pay to the employer. 

MeaningThe employer must pay its employees what it promised in the CBA. The government must pay the contractor what it promised in the contract.  If there is a disconnect, the contractor eats it.  

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On ‎9‎/‎16‎/‎2019 at 9:11 AM, Pilon said:

Contract type: 

You did not tell us how the contract is funded, e.g., cost reimbursement, FFP, etc.  Also under what clause are you seeking an adjustment?  Finally, you said that the contract incorporates the CBA.  Is this in the form of a WD issued by DoL?  If not, how is the CBA incorporated in the contract? 

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This is a FFP contract.  The CBA is the WD and fully incorporated in the contract.  We are trying to submit a WD price adjustment and looking at actuals from last year; specifically related to OT and Standby pay. 

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SCA does not require OT.  Contract Work Hours and Safety Standards Act is what provides for overtime, in some cases, with regard to service work.

It would seem that if the CBA addresses OT and you are looking for a price adjustment you would look to CWHSSA and the CBA an not SCA.  If either CWHSSA or CBA does not address price adjustments for OT I would think you are out of luck.   As an aside the CO's determination to me then looks a little off base but same result.

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