SCA Part 3

[C Culham]

1 hour 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?

I have given you my position.  I trust in the response.  You?  What ever you want.

I will say all references and the discussion gave me confidence.  Don't like it then you do it on your own.  Get back to me when you do I will be waiting.

Thank you.

[C Culham]

1 hour ago, Vern Edwards said:

 

Post your letter here, please.

Let me confer with counsel first.  I might be compelled to include a disclaimer just as I would in a private message to you.   Not a duck and dive any private message to me will be responded to.

Additionally I am out of town as I posted so it would not be until next week.

The inferences of trust in this is tread are becoming another mind boggling affair!   Wow!

[formerfed]

All I can say about this and the other two threads is “wow.”  In just about every office I know, people are overworked and understaffed.  COs are swamped.  Why get into this issue when there are so many higher priorities?  If a CO feels a contractor is in violation, just notify DOL.  That’s their job.  At best, this is a real stretch if it’s even the COs concern.  

I’m sure there are lots more pressing issues for COs to devote their time - like assisting program offices in preparing documents, quit taking shortcuts such as forcing LPTA and avoiding discussions, and self education. 

[Vern Edwards]

3 hours ago, C Culham said:

The inferences of trust in this is tread are becoming another mind boggling affair!   Wow!

The only reason that I'm engaging you about this topic is because of something you said in response to a post from ji20874 on May 16.

On that day Joel posted,

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It’s unfortunate that the government doesn’t conduct any labor interviews or review payrolls on service contracts, if this behavior (breach) is prevalent anywhere. 

and ji20874 posted this in response,

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You mention "the government" -- but the government (DOL) is free to do all the labor interviews and payroll reviews for service contracts that it wants to.  The contracting officer has no responsibility for such, unlike Davis Bacon, and I am okay with that.

to which you responded,

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Not so fast and not so true.  With absolutely no apologies any CO who feels that they can just put SCA in a contract and have no responsibility for administration of the requirements is not fulfilling their duty pursuant to the guidance of the FAR.  It may not be specifically stated in FAR part 22 like it is for D-B but it sure is provided for in the guiding principles.   And any senior CO who advocates such with "I am okay with that" is an equal to the OP's client. [Emphasis added.]

And you considered the OP's client to be a dirtbag. 

ji20874 responded with this, in part:

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Wrong.  And also unfair.

and went on to defend himself. After that you went into what is your typical rain dance of who-said-what-in-what-post—dissembling, denying, finger-pointing, and insisting, and writing crappy, sometimes incoherent sentences. And you did it all in the Beginner's Forum, of all places, where many readers don't know enough to know who is right and how to assess the evidence on each side.

I respect your knowledge, experience, and passion for the work, but I was angered by what you said in those May 16 posts. And I don't respect you for going on and on and being doggedly insistent in the face of contrary evidence from several sources, and contrary arguments from several very experienced Wifcon members of long standing, that you are wrong to claim that CO's have independent authority under the Inspection of Services clause and pursuant to the FAR guiding principles to conduct employee interviews, and a duty to do so, which no statute, regulation, or contract clause expressly or impliedly empowers them to do except as authorized agents of the DOL.

What you have asserted in these threads is significant departure from the plain language of statute and regulation and from long-standing practice. I do not accept anything you say about some "interpretation" you say you got from some DOL "inspector" in response to some letter which we have not seen. A gracious colleague would long since have said, simply, "In light of so much opposition from so many respected persons, perhaps I'm wrong. I'll think more about it and do some research," and let it go at that. You had a bad experience when you were with the Forest Service, and it has thrown you off your bearings. It was a mistake to post to What happened? You should have let it drop.

You owe everyone an apology, but especially ji20874. As soon as you make it, I'll apologize for being irrascible and intemperate.

I will still look forward to reading your posts about other matters.

[C Culham]

17 hours ago, Vern Edwards said:

You should have let it drop.

Your most recent post is why I can not.  Moreover in Beginners Forum is a perfect place after the long road of the three threads.

First and foremost you attribute words to me that are not true and never written by me.  Your penchant and admission to discredit me with untrue  statements continues regardless of what you might further write.

You also take editorial freedom in representing what was written to continue a one-sided biased view that you want others to believe of me.

And you attacked my very being (mental state) with no first hand knowledge. 

As to the matter of interviews I will simply repeat the informed interpretation of the DOL WH that I received - Interviews regarding SCA by other than DOL, while not expected by DOL, are not prohibited. To this I will add that in the case of a actions by a contractor that suggest egregious violations of SCA it is my position that a CO's responsibility will guide whether they would do interviews or not.

To Beginners the foregoing is a clear demonstration of the leadership that is often noted in WIFCON.  That is one can provide all the references and research they want to support a position under the FAR guiding principles but in the end it won't matter.  What will be done instead is whatever is demanded and facts are lost.  Not unlike the entirety of the three threads of this discussion it narrows to a battle of personalities where leadership bends towards discredit that may be detrimental to a career.

Luckily I have no fear of that but my professionalism and person has been challenged with untruths and twisted facts and I will not accept it for a minute.

On this I am asking that this thread be closed.

 

[Vern Edwards]

All:

I wrote the following letter to the DOL Wage and Hour Division:

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Dear Mr. __________,

I have a question about the administration of the Service Contract Act under a Government contract.

According to Department of Labor regulation 29 CFR 4.6(g)(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.”

See also the contract clause at 48 CFR 52.222-41, Service Contract Labor Standards (August 2018), paragraph (i)(4), which says the same thing.

I can find nothing in the regulation or the contract clause that requires a contractor to permit an agency contracting officer to interview its employees at his or her own initiative and without authorization by the Department of Labor Wage and Hour Division. Nor can I find anything in the regulation or clause stating that an agency contracting officer is an authorized representative of the Department of Labor Wage and Hour Division by virtue of his or her position.

Thus, my question is as follows:

Pursuant to 29 CFR 4.6(g)(4) or 48 CFR 52.222-41, must a contractor permit an agency contracting officer to interview its employees at his or her own initiative and without evidence that he or she is an authorized representative of the Wage and Hour Division?

My reason for asking is concern that (1) a contracting officer be properly trained and deputized to conduct such interviews and (2) to preserve contractual rights and comply with regulatory and contractual obligations.

Thank you for your kind consideration.

Sincerely,

Vernon J. Edwards

I received the following response from a DOL regional office today:

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Mr. Edwards. I’ve run your Q by our Senior Policy Analyst for SCA at our National Office as well as our Regional Enforcement Coordinator for Government contracts. In this situation DOL wouldn’t tell an contract agency what they can or cannot do while administrating their SCA contracts. While we may enlist the assistance of contracting agencies to help us at times with employee interviews, we don’t deputize contracting folks and we are not the arbiter of this issue.  I’m aware of situations where the contracting agency has in fact conducted employee interviews on SCA contracts. We’re not going to tell a Contracting Agency they cannot interview workers, who  are working on their SCA contracts.

 As it regards your concern of ‘preserve contractual rights and comply with regulatory and contractual obligations’, those rights are still preserved as DOL can discuss concerns with both parties should there be a Q abt SCA compliance derived from SCA interviews and if there were apparent compliance issues, DOL could conduct an SCA investigation to insure regulatory and contractual obligations.

 In the end we see an agency conducting employee interviews of this nature as a compliance tool to insure contractor compliance and to give DOL enforcement options should there be Q abt SCA compliance arising from ee statements.

The person who signed the response identified themself as: "Senior Investigator Advisor."

I do not believe the DOL response answered my question, which was:

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Pursuant to 29 CFR 4.6(g)(4) or 48 CFR 52.222-41, must a contractor permit an agency contracting officer to interview its employees at his or her own initiative and without evidence that he or she is an authorized representative of the Wage and Hour Division?

Basically, the DOL response is "We won't tell an agency what it can or cannot do." That response does not seem to me to be consistent with the plain language of either 29 CFR 4.6(g)(4) or FAR 52.222-41(i)(4). However, it is clear to me that it's the only response I am going to get under the circumstances.

I was told orally that CO-initiated interviews are rare. The only agency mentioned by the DOL rep was the Forest Service, but I did not inquire about other agencies.

I think the DOL response lends support to C Culham's general take on the issue, but that it does not support his specific arguments and conclusions about the CO's authority.

That's all I could learn. Such are the ways of bureaucracy.

[C Culham]

Once again I am personally compelled to post as I believe context is missing.  This has no intent of getting the last word in but to respond directly to my argument and conclusion about SCA interviews by a CO.

My interpretation, and position, on the issue of SCA interviews was and is that, absent a specific agency policy or regulation, there is no prohibition against a CO doing SCA interviews stated in USDOL regulations, FAR Clauses and/or case law and as such a CO may do interviews.

Two independent formal requests to USDOL and response to those requests, both formal and anecdotal, support my interpretation.  I am confident in the USDOL responses and believe that USDOL is the final authority on the matter pursuant to 29 CFR 4.101(g) which is referenced below with emphasis added. 

I am confident in the USDOL responses as both were sought independently and  responses came from representative authority required by the regulations of the USDOL.   Specifically, 29 CFR 4.101(g) which is referenced below with emphasis added.  A response from a "Senior Compliance Specialist" at the the WDC level and a response from a regional Senior Investigator Advisor that references WDC input meet the standard of 29 CFR in solving doubt about a matter of SCA interpretation. 

As has be repeated in this thread and threads that preceded it the matter of interpretation is viewed differently by others and that is their prerogative.   I will however continue to subscribe to mine especially when USDOL, pursuant to their authority, has not disagreed with it.  

"29 CFR 4.101(g) It should not be assumed that the lack of discussion of a particular subject in this subpart indicates the adoption of any particular position by the Department of Labor with respect to such matter or to constitute an interpretation, practice, or enforcement policy. If doubt arises or a question exists, inquiries with respect to matters other than safety and health standards should be directed to the Administrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210, or any regional office of the Wage and Hour Division...."