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SCA, Part 2


C Culham

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On 6/1/2021 at 2:16 PM, C Culham said:

As I have pointed out both the statute and the 52.222-41 clause with a specifically positioned "or" address this.  Its not a delegation it is statutory language that says - 

"Enforcement of section

In accordance with regulations prescribed pursuant to section 353 of this title, the Federal agency head or the Secretary is hereby authorized to carry out the provisions of this section."

The statute is not DOL's wording or delegation it is that of the Congress and this statement of the statute gives direction to the DOL that their regulations are to give such authority to the agency head.

Carl, you are stretching the words of the statute, that has been recodified at 41. U.S.C. 6705 since 2011, into something that is totally at odds with what it actually says.  The statute now reads "In accordance with regulations prescribed pursuant to section 6707(a)–(d) of this title, the Secretary or the head of a Federal agency may carry out this section."  Nothing in the statute requires DoL to delegate its authority to enforce the SCA to another agency.  Instead, it gives DoL the discretion to grant such a delegation in regulations promulgated by DoL.  Unless DoL delegates such authority to the head of an agency, DoL has exclusive power to enforce the SCA in accordance with 41 U.S.C. 6707.

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1 hour ago, Retreadfed said:

Carl, you are stretching the words of the statute, that has been recodified at 41. U.S.C. 6705 since 2011, into something that is totally at odds with what it actually says.  The statute now reads "In accordance with regulations prescribed pursuant to section 6707(a)–(d) of this title, the Secretary or the head of a Federal agency may carry out this section."  Nothing in the statute requires DoL to delegate its authority to enforce the SCA to another agency.  Instead, it gives DoL the discretion to grant such a delegation in regulations promulgated by DoL.  Unless DoL delegates such authority to the head of an agency, DoL has exclusive power to enforce the SCA in accordance with 41 U.S.C. 6707.

My position remains. The "or" is carried to the 52.222-41 clause.

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I understand the point of you contract admin point @C Culham. There is nothing wrong with monitoring compliance. Make sure everyone is getting paid what they should be. Either way, there isn't U.S.C. or regulatory standing to support your stance. 

Edited by Constricting Officer
Poor Proof Reading
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4 hours ago, Retreadfed said:

You are grasping at straws to defend the indefensible.

Let me try.

41 USC 6705 - Violations provides that the agency head "may carry out this section" pursuant to 6707 (a-d)  and I see no requirement for delegation. But I will follow your logic anyways and point to (a) of 6707 which says "Sections 6506 and 6507 of this title govern the Secretary’s authority to enforce this chapter,".   Notably 6705 is missing.  But still following your logic let me refer to 52.222-41 at (k) which states - "or such sums as the Contracting Officer decides may be necessary to pay underpaid employees employed by the Contractor or subcontractor. "  

Conclusion - Tthe "or" of the USC is carried to regulation with the view that how would a CO decide sums necessary without doing some sort of due diligence, dare I say interviews, asking for contractors payrolls, etc.   I have readily admitted that if the contractor were to attempt to avoid a request by the CO for such information that the matter would be turned over to the DOL for "enforcement" yet as stated I see nothing in the clause, that would prevent the CO from making such a request to perform what they are allowed to do----withhold "sums".

My straw I guess.

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15 hours ago, C Culham said:

Violations provides that the agency head "may carry out this section" pursuant to 6707 (a-d) 

That is a misstatement of what the statute says.  6705 says that that the Secretary of head of a Federal agency may carry out that section, in accordance with regulations issued under 6707.  In turn, 6707 gives the Secretary the authority to issue regulations.  No where in the SCA is the head of an agency, other than the Secretary, given authority to issue regulations regarding enforcement of the SCA.  Thus, if the head of an agency is to carry out 6705, that would have to be done in accordance with regulations issued by the Secretary.  If those regulations do not delegate the Secretary's authority to carry out investigations and enforcement actions to the head of a Federal agency, that agency head has no authority to carry out such investigations or enforcement actions.  This is bolstered by the fact that 6707 refers to 41 U.S.C. 6505.  Subsection (e) of that latter section states "The Secretary, or an authorized representative of the Secretary, may make investigations and findings as provided in this chapter and may, in any part of the United States, prosecute an inquiry necessary to carry out this chapter."  This clearly refers to an authorized representative of the Secretary.  A contracting officer cannot be an "authorized representative of the Secretary" unless the Secretary designates him/her to be such representative.  

Looking at 52.222-41(k), the only power granted to a contracting officer is to determine if the amount due covered workers as a result of a violation determined by the Secretary is adequate.  The contracting officer is not granted any power to determine that a violation has occurred.  The determination of the amount due would be based on the record compiled by the Secretary, not an independent investigation by the contracting officer.

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I have to jump in here in support of Retreadfed, who said:

16 hours ago, Retreadfed said:

6705 says that that the Secretary of head of a Federal agency may carry out that section, in accordance with regulations issued under 6707.  In turn, 6707 gives the Secretary the authority to issue regulations.  No where in the SCA is the head of an agency, other than the Secretary, given authority to issue regulations regarding enforcement of the SCA. 

In 1979, the Office of Federal Procurement Policy (OFPP) and the Department of Labor got into a dispute about the authority of OFPP to issue policies about the Service Contract Act. The President asked the U.S. Attorney General for an opinion about which agency had what powers. The Attorney General issued an opinion entitled, "Office of Federal Procurement Policy—Authority to Determine Whether the Service Contract Act, Walsh-Healey Act. or Davis-Bacon Act Applies to Classes of Federal Procurement Contracts," 43 U.S. Op. Atty. Gen. 150, March 9, 1979.

In that opinion the AG said:

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All of the contract labor standards give the Secretary [of Labor] power to interpret them through regulations. Before the enactment of Pub. L. 93-400 [the OFPP Act] it was well settled that the Secretary had authority under the contract labor standards to interpret their substantive provisions, including those dealing with coverage, and the courts and Comptroller General deferred to any interpretation not clearly contrary to law.

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The authority of an executive agency under any other law to prescribe 'policies, regulations, procedures, and forms of procurement' is expressly made subordinate to OFPP's authority under this section by 41 U.S.C. § 408. [Now 41 U.S.C. § 1121(c)(3).]

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Thus, the legislative history of Public Law 93–400 recognizes a distinction between the ‘procurement aspects' of the contract labor standards statutes and the substantive enforcement of those statutes. OFPP was given authority to set policy over the procurement aspects in the interest of uniformity but it was not given substantive authority over the achievement of socio-economic objectives. This division of responsibility corresponds with that originally recognized under the contract labor standards statutes—the Department of Labor sets the basic interpretation of the Acts and establishes the wage rates, and the individual contracting agencies implement the Acts through the exercise of their procurement functions... The quite separate responsibility of interpreting and enforcing the socio-economic purposes of the contract labor standards was not conferred on OFPP. 

If the OFPP does not have the authority to interpret and enforce the labor laws, and if the authority of agency heads is subordinate to the authority of the OFPP, it follows that the agency heads have no authority to interpret and enforce the labor laws. The SCA clauses in FAR implement DOL rules.

When you read FAR 52.222-41 and 29 CFR part 4, together, as you must, it is clear that the agency head's and a contracting officer's authority to enforce the payment of minimum labor rates is subject to the decisions and authorization of the DOL. That is why disputes about the SCA are not subject to the Contract Disputes Act, COs cannot make final decisions in such matters, and the boards of contract appeals and the Court of Federal Claims have no jurisdiction over SCA enforcement disputes under the CDA.

The inspection of services clause, FAR 52.246-4, does not give a CO authority to conduct employee interviews or enforce the SCA. The clause is prescribed by FAR Part 46. See FAR 52.101(c):

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Prescriptions. Each provision or clause in subpart  52.2 is prescribed at that place in the FAR text where the subject matter of the provision or clause receives its primary treatment. The prescription includes all conditions, requirements, and instructions for using the provision or clause and its alternates, if any. The provision or clause may be referred to in other FAR locations.

According to FAR Part 46.000, Scope of part:

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This part prescribes policies and procedures to ensure that supplies and services acquired under Government contract conform to the contract’s quality and quantity requirements. Included are inspection, acceptance, warranty, and other measures associated with quality requirements.

According to FAR 46.101, Definitions:

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Contract quality requirements means the technical requirements in the contract relating to the quality of the product or service and those contract clauses prescribing inspection, and other quality controls incumbent on the contractor, to assure that the product or service conforms to the contractual requirements.

There is no mention of the inspection of services clause in FAR Subpart 22.10. And as I explained in an earlier post, the Civilian Board of Contract Appeals addressed the notion of applying the FAR guiding principles when interpreting contract clauses and rejected it in short order. Moreover, as the Attorney General opined, the FAR councils have no authority to set policies pertaining to SCA enforcement.

All of the above is why FAR Subpart 22.10 prescribes no policies or rules about CO enforcement of the SCA, but says, in 22.1024:

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The contracting officer shall cooperate with Department of Labor representatives in the examination of records, interviews with service employees, and all other aspects of investigations undertaken by the Department. When asked, agencies shall furnish the Wage and Hour Administrator or a designee, any available information on contractors, subcontractors, their contracts, and the nature of the contract services. The contracting officer shall promptly refer, in writing to the appropriate regional office of the Department, apparent violations and complaints received. Employee complaints shall not be disclosed to the employer. [Emphasis added.]

DOL has published guidance about "visits to employers." See Fact Sheet #44, https://www.dol.gov/agencies/whd/fact-sheets/44-flsa-visits-to-employers . A CO is not cooperating with DOL by going off and interviewing employees on his or her own nonexistent authority.

A CO's primary responsibility under the SCA is to make a preliminary determination about the applicability of the SCA to a contract, to obtain and include a wage determination in a contract, to administer the conformance process, and to cooperate with the DOL in enforcement.

I think Carl has misinterpreted what happened when he was with the USFS. I think that what happened is that DOL authorized USFS COs to conduct interviews of contractor employees at remote sites, and trained them to do it. I think it was done under the authority of DOL regulations, not the inspection of services clause.

Carl, really. Why won't you just acknowledge that agency head and CO authority is subordinate to DOL authority in this matter. Why not just agree that while COs should take an interest in SCA administration by advising contractors of the crucial importance of compliance and by receiving and reporting concerns and complaints to DOL, they should not go off on their own to conduct interviews of contractor employees or otherwise enforce the SCA without DOL authorization. Is that really so hard for you to do?

Please!

Edited by Vern Edwards
To change 45.101 to 46.101
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16 hours ago, Vern Edwards said:

Is that really so hard for you to do?

Not hard to do at all.  But as I consider your research please tell me where a CO has exceeded their authority to advise the DOL of a concern.

 

1.    Government issues a solicitation for janitorial services that contains FAR 52.222-41.  Additionally, it contains 52.246-4.   The government subsequently awards a contract and these two clauses remain in the contract.  (Note it does not matter whether it is non-commercial or commercial as in the latter for the “if” in your scenario that I am expanding the Government through market research has concluded that in the world of commercial contracting in-process inspection occurs for the type of janitorial work contemplated and on which the contract is awarded.”

2.    At contract award the contractor is provided with 21 (there are 21 buildings considered to be work sites pursuant to the other details of the contract) Form WH-1313s appropriately marked noting SCA applies and a copy of the SCA wage determination to be displayed on the reverse of the form is also provided. In this example no post-award conference was held but the CO did provide a written overview of important post award matters that follow the guidance of FAR 42.503 and agency policy.  SCA is addressed including the requirement to post the WH-1313 (See FAR 22.1018)

3.    During contract performance in process inspection is performed at one of the buildings.  The CO (or duly authorized representative) cannot find the WH-1313 displayed anywhere within the structure at which the work is being performed at.

4.    Noting the absence of the form the CO consults with or otherwise has a face-to-face meeting (one might call this an interview or it otherwise could be defined as such) with a janitor, who has been designated as the contractor’s on-site representative at this building and consults with them as to where the WH-1313 might be.   The janitor indicates no knowledge of such a form (aka poster) being displayed.  Further the janitor indicates there is no wage determination posted anywhere as well.

5.    The CO continues the face-to-face meeting with the janitor by asking if the janitor has knowledge that SCA applies.  The janitor indicates confusion.  The CO further asks if the janitor knows what is the rate of pay that he is being paid.   The janitor voluntarily offers that he is not being paid an hourly rate but rather he is being paid by each toilet he cleans.  Discussion ends after a little more face to face discussion that enhances the CO understanding that the janitor has no knowledge of SCA, wage rates, his rights, etc.

6.    The CO continues the in-process inspection and determines that the janitor’s closet provided for necessary contractor furnished equipment to perform the work contains items lacking MSDS’s and it is clear that the cleaning solutions that contain hazardous and volatile ingredients are being stored in an unsafe and life-threatening way.

7.    At completion of inspection rather than addressing the in-process inspection issues with the onsite representative the CO contacts the contractor herself.   The CO has taken this route noting the fact that the janitor has no knowledge whatsoever of SCA.

8.    The CO in meeting with the contractor expresses concern and asks the contractor the following question with regard to the other 20 buildings being serviced under the contract – “I would like to interview your employees to determine your compliance with the SCA.

9.    The contractor responds – “I never agreed to let you do that. Go pound sand.

10. CO replies by reminding the contractor of the requirement for paying SCA, display of poster, etc. and further reminds the contractor of the in-process inspection right of the contract.  And again, requests the opportunity to further meet one on one with employees (interview).

11. The contractor again refuses.  The CO then tells the contractor that absent the ability to further determine the extent of the contractor’s contract requirement to meet the basic requirements of SCA the CO would be referring the contractor to the DOL for further investigation and possible enforcement action. 

12. At this point one of two things will happen - The contractor being a real do right person reverses their pound sand attitude agrees to further interviews as well as requests the opportunity to fix any misgivings regarding posters, material storage, payment of SCA wages/fringes, etc. etc.  OR the contractor continues the pound sand attitude at which point the CO hands the contractor a written notice of non-compliance with contract requirements regarding SCA and provides same to the DOL requesting further investigation. 

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On 6/5/2021 at 4:26 AM, C Culham said:

But as I consider your research please tell me where a CO has exceeded their authority to advise the DOL of a concern.

Carl, please confirm your question. You are asking me, based on the scenario in your post, in what way the CO has exceeded her authority to advise the DOL of her concerns about contractor compliance. Is that right? Her authority to advise the DOL of her concerns?

If that's your question, my answer is: If the CO advises the DOL of what has transpired and her concerns, then she has not exceeded her authority to advise DOL. She is supposed to cooperate with DOL, and that would be a form of cooperation.

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Carl: Have you read 29 CFR 4.6(g)? I quote it here for your convenience.

Quote

 

(g)(1) The contractor and each subcontractor performing work subject to the Act shall make and maintain for 3 years from the completion of the work records containing the information specified in paragraphs (g)(1)(i) through (vi) of this section for each employee subject to the Act and shall make them available for inspection and transcription by authorized representatives of the Wage and Hour Division of the U.S. Department of Labor:

(i) Name and address and social security number of each employee.

(ii) The correct work classification or classifications, rate or rates of monetary wages paid and fringe benefits provided, rate or rates of fringe benefit payments in lieu thereof, and total daily and weekly compensation of each employee.

(iii) The number of daily and weekly hours so worked by each employee.

(iv) Any deductions, rebates, or refunds from the total daily or weekly compensation of each employee.

(v) A list of monetary wages and fringe benefits for those classes of service employees not included in the wage determination attached to this contract but for which such wage rates or fringe benefits have been determined by the interested parties or by the Administrator or authorized representative pursuant to the labor standards clause in paragraph (b) of this section. A copy of the report required by the clause in paragraph (b)(2)(ii) of this section shall be deemed to be such a list.

(vi) Any list of the predecessor contractor's employees which had been furnished to the contractor pursuant to § 4.6(l)(2).

(2) The contractor shall also make available a copy of this contract for inspection or transcription by authorized representatives of the Wage and Hour Division.

(3) Failure to make and maintain or to make available such records for inspection and transcription shall be a violation of the regulations and this contract, and in the case of failure to produce such records, the contracting officer, upon direction of the Department of Labor and notification of the contractor, shall take action to cause suspension of any further payment or advance of funds until such violation ceases.

(4) The contractor shall permit authorized representatives of the Wage and Hour Division to conduct interviews with employees at the worksite during normal working hours.

 

Note that the requirements of that passage are the same as those in FAR 52.222-41 paragraph (i), although the clause is formatted differently.

Note that both the regulation and the clause require the contractor to disclose records only to, and provide access to employees only by, "authorized representatives" of the DOL Wage and Hour Division.

A CO has no right under regulation or contract to access (a) records or (b) contractor employees, except as authorized by DOL. 

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On 6/5/2021 at 5:19 AM, Vern Edwards said:

Carl, please confirm your question. You are asking me, based on the scenario in your post, in what way the CO has exceeded her authority to advise the DOL of her concerns about contractor compliance. Is that right? Her authority to advise the DOL of her concerns?

If that's your question, my answer is: If the CO advises the DOL of what has transpired and her concerns, then she has not exceeded her authority to advise DOL. She is supposed to cooperate with DOL, and that would be a form of cooperation.

Thank you

 

On 6/5/2021 at 7:47 AM, Vern Edwards said:

Have you read 29 CFR 4.6(g)?

Yes.   

I understand the position of many who have responded to my original post in this thread inclusive of yours.   I have not yet waivered my view of contract performance monitoring by a CO with regard to SCA.   My effort is not done with regard to finding something that settles it one way or another in my mind.  As such I am signing off but with the honest hope that I will post a follow-up at some point in the "What Happened"  topic area of Forum.

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@C Culham Thanks, Carl.

One last thought: "contract performance monitoring by a CO with regard to SCA" is a little vague.

The issues (disputes) in this and in the prior thread arose from your ideas that (1) COs should, at their own initiative, interview contractor employees to verify that they are being paid the proper wages and fringe benefits, and (2) that a CO's authority to do that was provided by the inspection of services clause, FAR 52.246-4, independent of DOL authorization. To the best of my recollection, those were the primary issues about which there have been disagreements. I do not believe that COs have any authority to interview contractor employees with respect to the SCA except as authorized by the DOL.

I don't recall any disagreement about "monitoring," in the sense of complying with FAR 22.1018, 22.1019, 22.1020, and other such matters. The main issues have been employee interviews and CO authority under the inspection clause to enforce the SCA.

While I am disappointed that you have decided to drop the issues without addressing the points that I have made, I respect your decision to proceed no further, and I do not attribute it to any concession on your part.

Best to you.

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1 hour ago, Vern Edwards said:

While I am disappointed that you have decided to drop the issues without addressing the points that I have made

I am not dropping the issues.  Again as noted I have taken your points into consideration and I am furthering my efforts outside the Forum.

 

1 hour ago, Vern Edwards said:

The main issues have been employee interviews and CO authority under the inspection clause to enforce the SCA.

You are correct as to the former, but by my recollection without going back and reviewing all my comments with regard to the latter, I believe I have stated, and if I have not, let me say it now.   Enforcement of SCA lies solely in the hands of DOL with the CO doing effort with regard to assurance of performing a contract with regard to all terms and conditions of the contract.  

1 hour ago, Vern Edwards said:

concession on your part.

I believe I set a standard of my own with regard to Forum, and quite honestly in life, that if I am dead wrong, off base, or any other part of something that requires concession I will step forward and say so.  My effort for this subject, is to be satisfied in my own mind that I have not put something forth that is wrong mined.  Your references have been an appreciated assist for my effort.

Best to you as well...............

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  • 3 weeks later...
On 6/7/2021 at 10:12 AM, Vern Edwards said:

@C CulhamWell, the Forum has a record of what we all have said in the two threads. So if you do come back to this topic in the future, we can all check to see what we said before. I just checked, printed out the thread, and am satisfied.

Best.

Please see my post in "What Happened" Forum subject area.

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12 minutes ago, C Culham said:

Please see my post in "What Happened" Forum subject area.

Thanks, Carl. 

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