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In the Beginners Section there are two threads SCA Avoidance and SCA Part 2.  This post is with regard to both.

There are those that might offer that the following is not authoritative.  I understand if one so concludes yet I followed through on what I offered in my closing posts in SCA Part 2.

I wrote a letter to the DOL Administrator for Wage and Hour(WH) with copy to the DOL  Regional Administrator for WH in San Francisco.  I can provide a copy of the letter whomever might want to see it.  Just know I am traveling right now. 

The letter was written pursuant to 29 CFR 4.101(g) and requested interpretation as whether a CO had authority to do interviews regarding SCA.

As a result of my letter I received a call yesterday from an investigator for WH.  I will verify the caller to anyone that requests.

The condensed version of the call is as follows.

Enforcement of SCA does lay in the hands of DOL yet an agency does have some ultimate authority.  Section 3 of the SCA Act as supported by 29 CFR 190 notes this authority, which is cancellation of a contract.

With regard to interviews it is an agreed gray area.  There is no "expectation" by DOL that an agency would do interviews but doing so is not "prohibted".

My conclusion as supported by the at length discussions in the two threads and the DOL WH telephone discussion of yesterday is doing interviews is left to the discretion of the CO/Agency.  

The two noted discussion threads will provide lots of food for thought as to the pros and cons of doing interviews or not. 

Thanks to all and while I am open to further discussion I hope my efforts help lay the interview matter to rest even though it is not the perfect yes or no answer we in acquisition eternally seek.

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Thanks, Carl.  I think your exchange validates everyone's viewpoint.  Certainly, it validates mine that DOL (not the contracting officer) has enforcement authority for SCA and that contracting officers have no duty to conduct interviews or otherwise treat SCA contracts like DB contracts.

Edited by ji20874
to explain my viewpoint
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@C Culham The big debate was mainly about your assertions concerning CO interviews of contractor employees. I don't find your "condensed version" of a telephone conversation with a WH "investigator" to be persuasive of anything. It certainly doesn't "validate" your assertions.

I don't buy that the issues about CO interviews are a "gray area." You said that COs may and must conduct such interviews. I say that a CO is not lawfully or contractually empowered to conduct SCA enforcement interviews of contractor employees except as an authorized representative of the DOL. Nothing in DOL's SCA regulations or the SCA contract clause says anything about interviews by COs, and silence in that regard is neither authorization nor assent.

We debated this for days without resolution. I see no reason for further discussion without new information.

I do appreciate your effort to seek an interpretation from DOL WH. I'm not surprised that you didn't get one in writing.

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57 minutes ago, Vern Edwards said:

@C Culham The big debate was mainly about your assertions concerning CO interviews of contractor employees. I don't find your "condensed version" of a telephone conversation with a WH "investigator" to be persuasive of anything. It certainly doesn't "validate" your assertions.

I don't buy that the issues about CO interviews are a "gray area." You said that COs may and must conduct such interviews. I say that a CO is not lawfully or contractually empowered to conduct SCA enforcement interviews of contractor employees except as an authorized representative of the DOL. Nothing in DOL's SCA regulations or the SCA contract clause says anything about interviews by COs, and silence in that regard is neither authorization nor assent.

We debated this for days without resolution. I see no reason for further discussion without new information.

I do appreciate your effort to seek an interpretation from DOL WH. I'm not surprised that you didn't get one in writing.

 Per regulation DOL has the sole authority to interpret SCA law so I am going with DOL on law and regulation.  As to a contract I am going with my assertion until contract interpretation case law specific to a matter of a SCA interview proves otherwise because up to now I can not find such case law.   

Thanks.  Who knows something in writing might come as the quick turnaround of a phone call was a surprise.

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6 hours ago, C Culham said:

Per regulation DOL has the sole authority to interpret SCA law...

Please cite that regulation.

I say that the courts can interpret the SCA and that they have the last word.

Under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), which was recently modified by Kisor v. Wilkie, 588 U.S. ___ (2019), the courts defer to the interpretations of statutes by the agencies charged with enforcing them, but the agencies do not have the last word.

The SCA gave the DOL authority to issue regulations and enforce the law. 41 USC 6506 says DOL can make, amend and rescind regulations and make investigations and findings. 41 USC 6507 says DOL can hold hearings and make decisions.

Nowhere does the SCA say that only DOL can interpret the SCA. They must do so, but their interpretations are subject to judicial review.

So, per what regulation does DOL have sole authority to interpret the SCA? Or do you mean that DOL is the only federal agency with authority to conduct investigations, hold hearings, and make SCA enforcement decisions, but that it can call on agencies to assist?

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3 hours ago, Vern Edwards said:

Please cite that regulation

"The Department of Labor (and not the contracting agencies) has the primary and final authority and responsibility for administering and interpreting the Act, including making determinations of coverage."  29 CFR 4.101

As I said DOL WH has given me an interpretation and until a court via case law provides that interviews are prohibited DOL WH is the authority.  So to be clear Your statement is not a clear interpretation of my position and comments.  One more time...but said with your words....

 

So, per what regulation does DOL have sole authority to interpret the SCA? 29 CFR 4.101.  Or do you mean that DOL is the only federal agency with authority to conduct investigations, hold hearings, and make SCA enforcement decisions, INTERPRET, (YES)but that it can call on agencies to assist? NOT ONLY CALL UPON BUT AGENCIES HAVE AUTHORITY TO CANCEL A CONTRACT.  SCA Section 3 and 29 CFR 4.190  "(a) As provided in section 3 of the Act, where a violation is found of any contract stipulation, the contract is subject upon written notice to cancellation by the contracting agency, whereupon the United States may enter into other contracts or arrangements for the completion of the original contract, charging any additional cost to the original contractor."

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So DOL has primary and final authority among agencies, but not sole authority. 29 CFR 4.101(b) says:

Quote

These rulings and interpretations are intended to indicate the construction of the law and regulations which the Department of Labor believes to be correct and which will be followed in the administration of the Act unless and until directed otherwise by Act of Congress or by authoritative ruling of the courts, or if it is concluded upon reexamination of an interpretation that it is incorrect.

And so your statement that "DOL has sole authority to interpret SCA law" was false. A federal court can overrule a DOL interpretation.

Just as I thought. You know, it would have been okay for you to just say that your statement was incomplete. We all make such statements on occasion. All the bull trying to turn it around on me wasn't necessary.

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9 hours ago, Vern Edwards said:

All the bull trying to turn it around on me wasn't necessary.

It's not bull Vern.  You read my posts to find even the most subtle flaw and I know it.   Sorted all my posts will clearly show that I exclaimed I could not find case law that prohibited an agency from doing interviews.  My admission that case law would trump anything. Therefore, absent case law DOL interpretation is it. I believe the SCA and its implementing regulations support my view.

 

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Carl,

What is your view?

1.  Contracting officers may do wage interviews with SCA contractor employees; 

2. Contracting officers should do wage interviews with SCA contractor employees; or

3. Contracting officers must do wage interviews with SCA contractor employees.

I don't think you're asserting 3., but I lost the bubble on whether you're with 1. or 2.

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7 hours ago, C Culham said:

You read my posts to find even the most subtle flaw and I know it.   

Of course I read your assertive posts looking for flaws! Flaws are incomplete statements, mistatements, misinterpretations, and errors of fact or reasoning. We all have them, which means that I have them and so do you. I read all assertive posts for flaws and often point them out.

If I post something that's flawed I hope and expect that someone will point it out to me, if for no other reason than to keep me straight. And you should hope and expect the same. That part of what's called... let's see... discussion.

Now, after you respond to ji20874, as I know you're going to, please answer this question for me:

You say, and I agree, that agencies have the authority to cancel contracts in response to a violation of the SCA. So if a CO acting on his or her own initiative tries to interview a contractor's employees in order to determine whether the contractor is paying the SCA specified wages and fringes, etc., but does not have a letter of authorization from the DOL, and if the contractor orders the CO not to interview its employees for that purpose and tells them not to answer the CO's questions, can the CO terminate the contract for default?

Please remember that disputes about SCA compliance are not subject to the Contract Disputes Act and to FAR Subpart 33.2. Also, remember that the SCA authorizes only the DOL to investigate, hold hearings, make findings, and make decisions about SCA compliance.

It's a yes or no question. You've had your talk with the DOL WH "investigator," so I assume you can answer with confidence.

By the way, what's the name and number of that investigator? I presume that's public information and that you won't mind if I ask about this matter as you did. You can communicate that privately with me if you like.

We need to get this sorted out once and for all.

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14 hours ago, C Culham said:

As I said DOL WH has given me an interpretation

Carl, are you considering a telephone discussion with a DoL investigator to be an official interpretation of the SCA or DoL rules?  On what authority did (s)he speak?  Do you consider whatever statements the investigator made to you, binding on DoL as a whole or were they merely his/her opinions?

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1 hour ago, ji20874 said:

Carl,

What is your view?

1.  Contracting officers may do wage interviews with SCA contractor employees; 

2. Contracting officers should do wage interviews with SCA contractor employees; or

3. Contracting officers must do wage interviews with SCA contractor employees.

I don't think you're asserting 3., but I lost the bubble on whether you're with 1. or 2.

 

 

 

 

 

 

I and 2....3 is discreation left to the CO principles of good faith and fair dealing.  Me I did back when as I felt a must sometimes to protect the best interest of the employee(s) and the Government.   

 

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47 minutes ago, Vern Edwards said:

please answer this question for me:

Well you asked two so which one?  Wait never mind I won't look for flaws I will be fair.

 

47 minutes ago, Vern Edwards said:

You say, and I agree, that agencies have the authority to cancel contracts in response to a violation of the SCA. So if a CO acting on his or her own initiative tries to interview a contractor's employees in order to determine whether the contractor is paying the SCA specified wages and fringes, etc., but does not have a letter of authorization from the DOL, and if the contractor orders the CO not to interview its employees for that purpose and tells them not to answer the CO's questions, can the CO terminate the contract for default?

Its not yes or no and you know it.

I would need to do extensive DOL case law review but my honest inclination is it would not be a T4D but a cancellation appealable to DOL.

Maybe a mixed bag T4D/Cacellation??

Anyways I know you have the answer so please share otherwise you would not of asked.  This is request I hope you can honor!

47 minutes ago, Vern Edwards said:

By the way, what's the name and number of that investigator?

As I noted I would share.  Coming your way soon.   I hope you don't attempt to discredit him as you have stated you want to do with me!

More?   Keep them coming!

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22 minutes ago, Retreadfed said:

Carl, are you considering a telephone discussion with a DoL investigator to be an official interpretation of the SCA or DoL rules?  On what authority did (s)he speak?  Do you consider whatever statements the investigator made to you, binding on DoL as a whole or were they merely his/her opinions?

You bet I am based on it being a direct response to a letter I wrote asking for an interpretation.   

Come on Retreadfed why wouldn't I?

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On 6/25/2021 at 1:09 PM, C Culham said:

I and 2....3 is discreation left to the CO principles of good faith and fair dealing.  Me I did back when as I felt a must sometimes to protect the best interest of the employee(s) and the Government.   

I might be okay with 1 (may), but we differ on 2 (should) and 3 (must).  As a contracting officer, I am comfortable with referring any concerns I might have to DOL, and I will never feel that I should or must do SCA wage interviews as a general proposition -- the Forest Service situation is an exception to the general proposition, and there, it is driven by the agency head.  

DB is a whole different matter.

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1 minute ago, ji20874 said:

Forest Service

I used it as a comparative example.  In my practice as a CO for USDA, NRCS & Forest Service; USACE; HHS,PHS,IHS; and SBA I did as noted.

To each their own.

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8 minutes ago, C Culham said:

Come on Retreadfed why wouldn't I?

What authority did the investigator have to give you an authoritative interpretation of the SCA and DoL rules?  Do you really think that informal discussions with an investigator of some unknown rank  constitute an interpretation of the SCA and DoL regulations that represent the views of the Secretary of Labor that would be formulated after proper and complete staffing of the question?

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14 minutes ago, Retreadfed said:

What authority did the investigator have to give you an authoritative interpretation of the SCA and DoL rules?  Do you really think that informal discussions with an investigator of some unknown rank  constitute an interpretation of the SCA and DoL regulations that represent the views of the Secretary of Labor that would be formulated after proper and complete staffing of the question?

His badge!

Seriously what did you need as a CO to verify authority of GAO. IG, FBI or other investigative officer to trust them.

I took away my smiley face but I remain amazed at your pursuit of questioning a direct response I got in a letter written to the Administrstor of DOL WH.

 

 

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48 minutes ago, C Culham said:

I would need to do extensive DOL case law review but my honest inclination is it would not be a T4D but a cancellation appealable to DOL.

Is a cancellation different from a termination for default? If so, what's the difference?

That's really a question, not a challenge. I have thought that the use of the word "cancellation" was just a quirk of the statute. If there is a difference I want to learn about it.

Here's what 52.222-41 says, at paragraph (k):

Quote

Additionally, any failure to comply with the requirements of this clause may be grounds for termination of the right to proceed with the contract work. In such event, the Government may enter into other contracts or arrangements for completion of the work, charging the Contractor in default with any additional cost.

Here's 29 CFR 4.190(a):

Quote

As provided in section 3 of the Act, where a violation is found of any contract stipulation, the contract is subject upon written notice to cancellation by the contracting agency, whereupon the United States may enter into other contracts or arrangements for the completion of the original contract, charging any additional cost to the original contractor.

I think cancellation and termination are the same thing. Am I wrong? 

Edited by Vern Edwards
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15 minutes ago, Vern Edwards said:

Is a cancellation different from a termination for default? If so, what's the difference?

That's really a question, not a challenge. I have thought that the use of the word "cancellation" was just a quirk of the statute. If there is a difference I want to learn about it.

Here's what 52.222-41 says, at paragraph (k):

Here's 29 CFR 4.190(a):

I think cancellation and termination are the same thing. Am I wrong? 

Not worried about right or wrong but my thoughts.

T4D has many tentacles, first to mind is partial, the settlement stuff, and on.   A cancellation and allowed government action per statute reads more fatal to me.  DOL hearing records would clarify I am sure.

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57 minutes ago, C Culham said:

Seriously what did you need as a CO to verify authority of GAO. IG, FBI or other investigative officer to trust them.

Who said I trusted them?  I got IG personnel lying to our agency head.  Also, I dealt with Federal criminal investigators frequently, and I know their credo was we thrive on suspicion, rumor and innuendo.

I think you are placing to much trust in your telephone call.  I would not take what I was told as anything other than his/her personal views.

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27 minutes ago, C Culham said:

T4D has many tentacles, first to mind is partial, the settlement stuff, and on.   A cancellation and allowed government action per statute reads more fatal to me.  DOL hearing records would clarify I am sure.

May I interpret that to mean that you don't know whether termination and cancellation are different?

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1 minute ago, Vern Edwards said:

May I interpret that to mean that you don't know whether termination and cancellation are different?

Possibly in the context of SCA statute and regulation.  A conclusion not inconsistent with our discussion regarding interviews.

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18 minutes ago, C Culham said:

Possibly in the context of SCA statute and regulation.  A conclusion not inconsistent with our discussion regarding interviews.

So you don't know whether termination and cancellation are different. Thanks.

You have no idea how helpful you're being.

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