Hello,

My acquisition team is having a debate regarding the Service Contract Act (SCA) and Wage Determinations (WD). Reading through the FAR regulations and Federal Codes have made things muddy for me. Most of our contracts are predominantly professional services and do not include specific labor categories the Offerors need to incorporate; however, because it is healthcare related it could have proposed positions similar to nurses and it could have services that are clerical. Note- our place of performance is always unknown. Some believe the SCA applies and that you have to ask the Offerors (pre-award) if they have any direct labor categories for which a WD is necessary and the Offeror then provides the adequate information for the agency to confirm the labor category rate is equal to or higher than the prevailing WD. This would be attached to the contract at award. Others believe that since the SCA applies you need to request each Offeror provide every possible place of performance. For the apparent awardee you then have blanket WDs (all labor categories listed for a specific county, state) for each possible place of performance and attach those are attached to the contract at award.  In addition, they believe blanket WDs are necessary to cover indirect labor categories.

How do you incorporate WDs when the SCA applies? 

Is it necessary to have the SCA if the contract is predominantly professional services?  Also is this defined as have a small percentage of WD covered labor categories? 

Are indirect labor categories covered under the SCA?

Ex. A

SCA applies; RFP requests any direct labor categories for which WD applies; Offeror provides a direct labor category of "Secretary" and the applicable information for that employee so the Government can confirm the labor rate is equal to or higher than the WD for that geographical area. This WD is listed in the contract and an electronic version for the WD (Secretary only) is attached to the contract award.

Ex. B

SCA applies; RFP requests all possible places of performance of the Offeror were they to be awarded the contract. Offeror provides 5 locations (county, state) of possible places of performance. A WD for each place of performance listing all the WD labor categories is attached to the contract at award.

If anyone can help I'd appreciate it. 

 

Forget "predominantly" and forget "indirect labor categories."

See FAR 22.1003-1, and ask yourself what is the principal purpose of the contract.

18 hours ago, GMR said:

How do you incorporate WDs when the SCA applies? 

If this question is with regard to places of performance that can not be identified as you have suggested then see "FAR 22.1009-4 All possible places of performance not identified."

18 hours ago, GMR said:

Are indirect labor categories covered under the SCA?

Use of "indirect" complicates your question.  The real question is whether a position of the company is performing work required under the contract and if that position is subject to SCA.  A couple of generalities - while the CO has responsibility for including SCA applicable requirements in a contract the contractor has responsibility for compliance.  Noting the first generality with SCA in a contract the contractor would then determine which of the positions are subject to SCA.  A contractor in making such a determination might determine some employee positions are subject and some are not.  Generally the contractors determination might be based on what the position is doing and whether an exemption applies for positions such as bona fide executive, administrative or professional employees 29 C.F.R. Part 541.

19 hours ago, GMR said:

Ex. B

In a full read of your original post it would seem that this example is the most appropriate.  Again use of "direct" and "indirect" complicates the matter in my view, aka Ex. A.   As already noted in another post if the principle purpose of the contract is for services SCA applies and in general the CO does the best they can at providing SCA information in the solicitation to assist the contractor in their responsibility of compliance.   After award I believe a full read FAR 22.10 provides ample ability to further compliance.  Some examples after award are - FAR 22.1009-4(e), 22.1015, and the conformance process stipulated in a wage determination and at 22.1019.

Finally and again relating back to the FAR if a agency labor advisor position exists in the agency they might be of an assist.   There is the USDOL too.

20 hours ago, GMR said:

Are indirect labor categories covered under the SCA?

See this: https://www.awrcounsel.com/blog/2019/8/20/now-you-see-it-now-you-dont-service-contract-act-coverage-of-indirect-employees

This last sentence on the blog Vern cited says it all

Quote

Contractors and the Government agencies should expect DOL to liberally interpret the law to try to effectuate SCA coverage.

This is why I get so upset about the SCA - it’s a dinosaur law supported by a dinosaur organization that outlived their purpose.

1 hour ago, formerfed said:

This is why I get so upset about the SCA - it’s a dinosaur law supported by a dinosaur organization that outlived their purpose.

You mean labor advocates in congress?

1 hour ago, Retreadfed said:

You mean labor advocates in congress?

The law was passed in 1965 and designed to ensure the lowest income employees like those doing grounds maintenance and food services were paid fairly.  For years the Act covered “blue collar workers”  but good bureaucracies don’t sit still; they grow and take on a life of their own.  Now it’s a really challenge to find contract occupations that DOL doesn’t want covered. 

1 hour ago, formerfed said:

Now it’s a really challenge to find contract occupations that DOL doesn’t want covered. 

The more occupations covered, the more employees they (DOL) can justify hiring. Higher leadership grades and all. Not being political - just saying it fits. 

"Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth." - Ronald Reagan/1964

I could not get the link provided by Vern to work. 

Any information on how other agencies work with the SCA and incorporating wage determinations into their contracts is appreciated.

Thanks to everyone for trying to assist.

17 minutes ago, GMR said:

I could not get the link provided by Vern to work. 

I just tried it. It worked for me.

It worked for me, too.

What this thread and others like it have made me realize is that we lack good textbooks about our business. I think it is next to impossible to explain the SCA in this forum to someone who apparently knows next to nothing about it.

If you know enough background and do enough web-crawling you might be able to cobble together enough information to learn something, but that's no way to teach people.

Once upon a time practitioners in our business wrote books or pamphlets of instruction. Those days are over. It's hard to find enough knowledgeable and skilled writers to sustain a periodical. Everyone must learn what they can by visiting websites and piecing things together.

The greatest authors in our business are either gone or very old, and there are no replacements on the horizon. Procurement lacks good writers, meaning people who both know the business and can write a decent paragraph.

It is a very sad, bad state of affairs, especially since the business gets more complicated with each passing year.

Well said Vern, I agree. I tried to research the SCA and WDs on the internet but either couldn't find much or got more confused. I tried to read the FAR, DOL's website and Code of Regulations and with this topic it's a struggle for me as a CO.

Thanks again for your input.