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Hi, All!

Just wondering if anyone has procured acquisition support services (i.e., contractors performing Contract Specialist-equivalent duties such as pre-award documentation, contract administration, etc.) and whether they apply the Service Contract Act (SCA)/Service Contract Labor Standards (SCLS) to those acquisitions. There are further implications of applying SCA/SCLS (like the now reinstated “right of first refusal” provisions by the E.O. issued yesterday), so I am trying to get my bearings here. 
 

This type of occupational category is not clearly listed on Wage Determinations, but I am not sure if a bona fide professional exemption (29 CFR Part 541) applies either. These positions do, however, typically meet the salary requirements and usually require a level of experience that would make it seem like a “professional” position. 
 

Any insight would be greatly appreciated. Thanks!

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26 minutes ago, 2FARGone said:

Just wondering if anyone has procured acquisition support services (i.e., contractors performing Contract Specialist-equivalent duties such as pre-award documentation, contract administration, etc.) and whether they apply the Service Contract Act (SCA)/Service Contract Labor Standards (SCLS) to those acquisitions. There are further implications of applying SCA/SCLS (like the now reinstated “right of first refusal” provisions by the E.O. issued yesterday), so I am trying to get my bearings here.

Emphasis added.

Sigh.

@2FARGoneHave you bothered to read the Office of Personnel Management Position Classification Standard for Contracting Series, GS-1102? Do you need me to tell you how to find it?

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2 hours ago, 2FARGone said:

the E.O. issued yesterday

Here we go again....https://www.whitehouse.gov/briefing-room/presidential-actions/2021/11/18/executive-order-on-nondisplacement-of-qualified-workers-under-service-contracts/

2 hours ago, 2FARGone said:

Any insight would be greatly appreciated. Thanks!

For me the litmus test is more about what you are actually asking a contractor to do than a classification series of a position in the Federal government that determines SCA applicability.  Have you looked around here - https://www.dol.gov/agencies/whd/government-contracts/service-contracts  Especially at references regarding the exemption you note, with the reminder that it includes not only "professional" but executive and administrative employees as well.   Maybe Fact Sheet 17A.

Whenever such a subject comes up I am also reminded of FAR 7.3 and 7.5 the latter which was recently discuss in Forum here.  The original topic is not spot on but the rest of the discussion may be of interest - 

 

 

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@ji20874 thank you for the insight. I would be talking about more so 1102-equivalent duties rather procurement technician duties. I feel there is “professional” nature to 1102-equivalent duties, so I would agree that SCA would seem to not apply, but was not sure if anyone thought differently. 
 

@Vern Edwards thanks for the reply. Are you referring to the 147 page document from December 1983 (https://www.opm.gov/policy-data-oversight/classification-qualifications/classifying-general-schedule-positions/standards/1100/gs1102.pdf)?

If so, I see a relevant section on pages 131 and 132 that discusses whether the 1102 series is “professional,” but we know the 1102 position has changed with the 1102 series requiring a Bachelor’s degree now (although there have been talks to rid of that requirement again). So, would the fact there is a degree requirement now make the 1102 position (and any contractor 1102-equivalent position) “professional” and, thus, exempt from SCA?

@C Culham thank you for the information. Yes, I have been on that website and have reviewed the resources there, including the Fact Sheet you reference. In regards to your litmus test, do you think the duties of a contractor 1102-equivalent position (e.g., drafting pre-solicitation documents, solicitation documents, post-award contract administration, etc.) fall under a professional exemption and do not have SCA apply?

Thank you all!

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@Vern Edwards thank you, Vern. So taking a look at the updated 1102 Individual Occupational Requirements, the Q&A, and the underlying 41 U.S.C. 433 guidance, there does not seem to be any definitive guidance on whether the series is considered “professional” or some other category exempt from SCA. It seems like the occupation would be “professional” based on the positive education requirement.

I find it interesting that the 1102 series has its own Individual Occupational Requirements rather than being placed into any of the Group Qualification Standard categories like “Professional and Scientific,” “Administrative and Management,” etc.

I am still stumped. 

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@Vern Edwards thank you again. I had read that reference previously, but the way I interpret, for example, Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction” and then reading the definition of “knowledge of an advanced type” in 29 CFR 541.301 of “work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical or physical work. An employee who performs work requiring advanced knowledge generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances...” could truly apply to 1102 positions and contractor 1102-equivalent positions. Those positions exercise a lot of discretion, judgment, analysis, etc.

And then the customarily acquired by a prolonged course of specialized intellectual instruction” prong seems to be met by the requirement of the 1102 education requirement of 24 hours of learning in specific disciplines/subjects. Although the degree itself can be in any subject, it is still requiring a qualifying subset of specialized education within it.

I also think the language in 29 CFR 541.301(f) could be interpreted broadly to include the 1102/1102-equivalent profession as it states “…the areas in which the professional exemption may be available are expanding. As knowledge is developed, academic training is broadened and specialized degrees are offered in new and diverse fields, thus creating new specialists in particular fields of science or learning.”

Am I making a stretch with this interpretation?

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16 hours ago, 2FARGone said:

do you think the duties of a contractor 1102-equivalent position (e.g., drafting pre-solicitation documents, solicitation documents, post-award contract administration, etc.) fall under a professional exemption and do not have SCA apply?

 

34 minutes ago, 2FARGone said:

@Vern Edwardsthank you for helping me through this. A bit Socratic method-esque! :)

I am not applying SCA in these contractor 1102-equivalent requirements. 

I agree but let me pose a few more thoughts.

In the end it will be the contractors responsibility to determine application of FLSA/SCA to their employees as well as DOL.  Your conclusion suggests you are making a conclusion pursuit to FAR 22.11, not include a wage determination(?), and as such FAR 22.1015 may come into play.  I suspect in your research you have encountered these references but offering them just in case.

 

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@C Culham that is correct and the relevant FAR part 22 sections have been considered. I would not be including the FAR 52.222-46 provision, though, as these are commercial, professional services and there would not be a “meaningful” number of professional employees involved either way. 
 

Thank you for the insight throughout this topic!

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