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Hot Tips from the SCA Nuts & Bolts Webinar

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Updated 03/17/2023

Last week Mary Holmes of BOOST LLC and Nichole Atallah of PilieroMazza PLLC educated their webinar audience on SCA Compliance, Sick Time (as it pertains to FAR 52.222-43) and Common Challenges in complying with FAR 52.222-43 and SCA Health and Welfare as a whole.

While we encourage you to view the webinar in its entirety (which you can do here) we have compiled several of the takeaways for your perusal below, most of which pertains to SCA Health and Welfare and FAR 52.222-43.

Who is a ‘Service Employee’?

  • Any person who is actively working in performance of a service pursuant to a contract covered by the SCA Health and Welfare (unless they qualify or exemption as bona fide executive, administrative, or professional employees under the FLSA)
  • Independent Contractors* ARE included (including janitorial staff, health staff, security staff, etc.) *Independent Contractors are also required to be paid the SCA prevailing wage and fringe benefits. If you can classify someone as an independent contractor, you may be able to cash out the SCA benefits as long as they are appropriately dispersed to the contractor as expected.

Agency vs. Contracts Responsibility

Agency

Contractor
Determine if SCA applies (DOL has final say) READ everything carefully
Must incorporate FAR 52.222-41 (or 42) Choose the correct labor classification
Everything must be IN the contract Notify all employees and give them documentation of classifications
Area Wide Wage Determinations (WD) must be updated at each change and at least every 2 years Pay at least the required hours, at the appropriate rates and benefits
Do not determine your own WD, use resources like sam.beta.gov or you could risk a price adjustment Maintain records of all hour worked and all pay records

 

SCA Health & Welfare

  • Paid in addition to wages listed in the Wage Determination
  • Could be paid either as cash or as bona fide benefits at the employer’s discretion
  • Must be listed separately on pay records
  • Applies to both Part-Time and Full-Time employees
  • DOL increases H&W annually, however, employees are not entitled to an automatic increase unless there is a revision to the contract (but the contractor is entitled to a price adjustment)

 

Sick Leave

  • Applies to employees performing on or in connection with a contract governed by the Executive Order whose wages are governed by the SCA, DBA, or Fair Labor Standards Act
  • Accrued as follows: 1 hour per every 30 hours worked in connection with the contract
  • Contractors can provide 7 days of paid sick leave at the beginning of the accrual year instead of based on hours worked
  • Not required to pay out accrued unused sick leave at the time of job separation
  • Sick leave can not count against H&W benefits

 

You can get more detail, as well as information on vacation and holidays, leave, bidding a CBA Wage Determination, DOL enforcement, Price Adjustments, FAR 52.222-43 and more in the full presentation.

If you’d like to have a more in-depth conversation regarding your specific needs as they pertain to contract bidding and working on contracts within the SCA umbrella, let’s schedule a chat. The professionals at BOOST provide knowledgeable insight into the most unique government contracting situations.

 

 

The FAR is Not Far Away for Small Businesses

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We get it. You are a small shop, and the Federal Acquisition Regulations (FAR) is just another acronym in this hectic GovCon space. You are busy drumming up business, and who has time to think about FAR compliance? You might think the FAR is far, far away from you since you are a small business. Wrong! The applicability of the FAR to you as a government contractor (or subcontractor supporting a government contract) is not based on your business size. When it comes to the FAR, small businesses are just as likely to be audited as larger GovCons. 

Why?  Well, it all comes down to public policy.

In a recent case, the 9th Circuit summarized:

that the Federal Acquisition Regulation (FAR) provisions “while undoubtedly extensive, permit the government to maintain fairly uniform contracting standards in the many contracts it enters into with parties located in the United States and around the world…To allow contractors and subcontractors, foreign or domestic, to evade the FAR provisions because a subcontractor was too unsophisticated or inexperienced to fully understand them would potentially cripple the government’s ability to contract with private entities and would violate controlling federal law.” Aspic Engineering and Construction Company v. ECC Centcom Constructors LLC; ECC International LLC, No. 17-16510, D.C. No. 4:17-cv-00224-YGR, 13 (9th Cir. Jan. 28, 2019) (“Aspic”).

In short, public policy wins.

The government needs to be able to buy with a level of risk mitigation in place. Do you want your tax dollars going to a deal that turns bad because the guys building the new facility failed to follow their FAR flow downs? Not really.

Yes, it is challenging to compete in the GovCon space, but there is a sense of serving the public that makes the challenge worth it. However, that means you have to play by Uncle Sam’s rules. Even the one-man-bands building souped-up servers with robots attached to them in their garages have flow downs to contend with if they are going to sell to the federal government under traditional acquisition mechanisms.*This means, that no matter how small your business is, FAR is an important consideration for your operation.

In the name of public policy, even if certain FAR clauses are not “flowed” into your contract, a judge will find them applicable to your contract “by operation of law.” G.L. Christian & Assoc. v. United States, 160 Cl. Ct. 1 (Cl. Ct. 1965). The famous Christian Doctrine was applied to Federal subcontractors in UPMC Braddock et al., v. Harris, No. 1:09-cv-01210 (D.D.C. Mar. 30, 2013) (“UPMC”).

One of the traditional avenues for small businesses to gain a foothold in the GovCon space is through subcontracting, often thinking it is easier because they do not have to follow all the same rules as their prime contractor counterparts. However, based on UPMC, following the FAR, is required no matter what. There is no free pass on FAR for small businesses.

Even though we just threw a whole lot of legal ease at you, we don’t want you to be stressed about small business FAR compliance. If you need a plan to get your act in gear, BOOST LLC has experience setting small businesses up for success in the lean-and-mean style.

*There are Other Transactions Authorities that exist purposely to allow the federal government to pursue non-standard government contractors without the application of the FAR. There is good news! We know a great OTA Consortium Management group.