Toward the end of my career, I became a Procurement Analyst.  These are the folks in the Policy shop of a Contracting Office that make everyone’s life miserable by reviewing all the solicitation documents and contract files and telling you what additional information you need to add to them.  One of the things I routinely found that was left out of solicitation documents was the Service Contract Labor Standards clause FAR 52.222-41 (formerly known as the Service Contract Act) and/or the Department of Labor (DOL) Wage Determination (WD).

The applicable regulations require that contracting officers (COs) – not contractors – should determine if the Service Contract Labor Standards Act applies to a contract.  COs must insert the applicable clauses and Department of Labor (DOL) Wage Determination (WD) into the solicitation and contract. If the clauses and WD are not in the contract, then technically the Act does not apply (courts have repeatedly found that the Christian doctrine is not applicable in this case).  But there is a risk that the DOL, which has sole and exclusive authority to determine applicability, may later determine that the Act should apply to the contract. This would cause potentially significant price adjustments and contractors may not be able to receive any additional profit associated with these changes.

There are actually three clauses that a CO should include if the Service Contract Labor Standards Act applies.  The first is FAR 52.222-41 as previously mentioned.  FAR 52.222.42, Statement of Equivalent Rate for Federal Hires, where the CO provides Federal salary equivalents for the work being done in the contract.  Finally, one of the two following clauses will be included:  FAR 52.222.43, Fair Labor Standards Act and Service Contract Labor Standards — Price Adjustment (Multiple Year and Option Contracts) or FAR 52-222-44, Fair Labor Standards Act and Service Contract Labor Standards — Price Adjustment.

So what happens if the correct clauses are incorporated into the solicitation or contract, but the CO did not provide the applicable WD?  You should ask for it!

The responsibility lies with the CO to incorporate the applicable clauses and the WD.  However, if only the clauses are in there, you need to make sure they should be there and get the WD that goes with them.  Sometimes the clauses may be included incorrectly.  In that case, when you ask for the WD, the CO will amend the solicitation to remove the clauses.

But it is in your best interest to make sure you have the correct WD included so all the offerors (including you) are on a level playing field.  The WD can impact labor rates in multiple labor categories across multiple locations that may significantly decrease or increase your bid.

What if there is a WD attached to the solicitation, but no clauses included?  Same answer.  Ask the CO!  It is really the combination of the clauses (terms and conditions) and the WD (DOL approved labor rates) that make up a complete set of compliance rules for the Service Contact Labor Standards Act.

Bottom line is that if you think the work is covered by the Service Contract Labor Standards Act and there’s either a clause or WD missing from the solicitation or contract, it’s in your best interest to ask before award is made and performance begins.