SCHEDULE 736 TEMP HELP  ORDERING GUIDE

Table of Contents

 Definitions● Order Limitations   Conditions   Exceptions○ Price Negotiation● Small Business Size Standard● FLSA & SCA○ Professional Services■ Classifying Labor■ Service Employee○ Court Reporting○ Contractor Responsibility and Guidance○ OCONUS○ Certifications ○ Order Placement

● Appendix   5 CFR  300.501-507   DOL Occupational Classification   Overtime   Method Pricing Grids

5 CFR 300.501  Definitions.For purposes of this subpart:(a) A temporary help service firm is a private sector entity which quickly provides other organizations with specific services performed by its pool of employees, possessing the appropriate work skills, for brief or intermittent periods. The firm is the legally responsible employer and maintains that relationship during the time its employees are assigned to a client. The firm, not the client organization, recruits, tests, hires, trains, assigns, pays, provides benefits and leave to, and as necessary, addresses performance problems, disciplines, and terminates its employees. Among other employer obligations, the firm isresponsible for payroll deductions and payment of income taxes, social security (FICA), unemployment insurance, and workers' compensation, and shall provide required liability insurance and bonding.

1. A PRIME CONTRACT FOR TEMP SERVICES MAY BE ISSUED FOR ONE YEAR WITH ONE OR MORE OPTION YEARS.  Orders may be issued for a maximum of 120 days per person, per each single situation.   By statutory definition the term "employ" includes "to suffer or permit to work."  The workweek ordinarily includes all time during

which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed workplace.  "Workday," in general, means the period between the time on any particular day when such employee commences his/her "principal activity" and the time on that day at which he/she ceases such principal activity or activities. The workday may therefore be longer than the employee's scheduled shift, hours, tour of duty, or production line time.

300.503  Conditions for using private sector temporaries. An agency may enter into a contract or other procurement arrangement with a temporary help service firm for the brief or intermittent use of the skills of private sector temporaries, when required, and may call for those services, subject to these conditions:(a) One of the following short-term situations exists--

(1) An employee is absent for a temporary period because of a personal need including emergency, accident, illness, parental or family responsibilities, or mandatory jury service, but not including vacations or other circumstances which are not shown to be compelling in the judgment of the agency, or(2) An agency must carry out work for a temporary period which cannot be delayed in the judgment of the agency because of a critical need.

(b) The need cannot be met with current employees or through the direct appointment of temporary employees within the time available by the date, and for the duration of time, help is needed. At minimum, this should include an agency determination that there are no qualified candidates on the applicant supply file and on the reemployment priority list (both of which must provide preference for veterans), and no qualified disabled veterans with a compensable service-connected disability of 30 percent or more under 5 U.S.C. 3112, who are immediately available for temporary appointment of the duration required, and that employees cannot be reassigned or detailed without causing undue delay in their regular work. In instances where a need is foreseeable, as when approval of employee absence is requested well in advance, an agency may have sufficient time to follow the temporary appointment recruiting requirements, including veterans' preference found in 5 CFR part 316 to determine whether qualified candidates are available by the date needed and for the length of service required.(c) These services shall not be used:

(1) In lieu of the regular recruitment and hiring procedures underthe civil service laws for permanent appointment in the competitivecivil service, or(2) To displace a Federal employee.(3) To circumvent controls on employment levels.(4) In lieu of appointing a surplus or displaced Federal employee as required by 5 CFR part 330, subpart F (Agency Career Transition Assistance Plan for Displaced Employees) and subpart G (Interagency Career Transition Assistance Plan for Displaced Employees.)

[54 FR 3766, Jan. 25, 1989, as amended at 61 FR 19510, May 2, 1996; 66 FR 66710, Dec. 27, 2001]

2. ORDERS ARE LIMITED TO 120 working days within a 24 month period FOR EACH TEMP HIRE  PER “SINGLE SITUATION” AS PER 5 CFR 300.503. If justified in writing, an additional 120 days may be optioned for a maximum total of 240 days within a 24 month period. Customers should consider, and probably anticipate the need to execute options based on written justification need for services to continue.

Exception:(b) Time limit on use of individual employee of a temporary help service firm. (1) An individual employee of any temporary help firm may work at a major organizational element (headquarters or field) of an agency for up to 120 workdays in a 24-month period. The 24-month period begins on the first day of assignment.

(2) An agency may make an exception for an individual to work up to a maximum of 240 work days only when the agency has determined that using the services of the same individual for the same situation will prevent significant delay.(c) Individual employees of a temporary help firm providing temporary service to a Federal agency may be eligible for competitive civil service employment only if appropriate civil service hiring procedures are applied to them.(d) Agencies shall train their employees in appropriate procedures for interaction with private sector temporaries to assure that the supervisory responsibilities identified in paragraph (a) of Sec. 300.501 of this subpart are carried out by the temporary help service firm. At the same time, agencies must give technical, task-related instructions to private sector temporaries including orientation, assignment of tasks, and review of work products, in order that the temporaries may properly perform their services under the contract.

[54 FR 3766, Jan. 25, 1989, as amended at 61 FR 19511, May 2, 1996]

3. PRICES IN THE APPROVED GSA PRICE LIST MUST BE NEGOTIATED BASED UPON THE PREVAILING SERVICE CONTRACT ACT  WAGE GUIDELINES THAT APPLY TO THE LOCATION WHEREIN CUSTOMER AGENCY INTENDS TO UTILIZE THE TEMP HIRE.In order to execute any orders or establish contracts for temp help services, Ordering activities shall refer to the GSA approved price list. It’s important to note that price lists are previously negotiated for the prevailing wage rate that applies to the prime Place of Performance or the Vendor’s physical location.  At the discretion of the vendor, it may elect to use a high average of nationwide rates.

4. ALL WAGES MUST INCLUDE Health & Welfare and Paid Sick Leave increments. (Ordering activities shall refer to worksheet titled “method pricing” on www.fbo.gov for Solicitation # 7FCM-N6-030736-B  (See Appendix)

5.  An agency may make an exception for an individual to work up to a maximum of 240 workdays only when the agency has determined that using the services of the same

individual for the same situation will prevent significant delay. The SCA applies to all work performed within the United States. For purposes of the SCA, the term "United States" includes any State, the District of Columbia, Puerto Rico, the Virgin Islands, Outer Continental Shelf lands as defined in the Outer Continental Shelf Lands Act, American Samoa, Guam, Wake Island, Johnston Island, and the Commonwealth of the Northern Mariana Islands. The SCA does not apply to work performed in any other territory under the jurisdiction of the United States or any United States base or possession within a foreign country. Also, the SCA does not apply to work performed on ships operating in international or foreign waters. If a portion of the contract services isperformed within the United States and a portion is performed outside the United States, the SCA applies to the portion performed in the United States.

6. FLSA and SCA ImplicationsThe FLSA (29 USC 201, et seq.) prescribes standards for the basic minimum wage and overtime pay that may affect SCA-covered contracts. The SCA interacts with the FLSA in three key ways:

Section 2(b)(1) of the SCA provides that no contractor or subcontractor shall pay any employee engaged in performing work on a covered contract less that the minimum wage specified under section 6(a)(1) of the FLSA. See 29 CFR 4.159.

Section 8(b) of the SCA defines the term “service employee” as any person engaged in the performance of a contract or that portion of a contract subject to the SCA except those employees in bona fide executive, administrative, or professional capacities as those terms are defined in the FLSA regulations found at 29 CFR 541. See 41 USC 357(b) and 29 CFR 4.113.

Section 6 of the SCA recognizes that other federal laws, such as the FLSA, may require overtime compensation to be paid to service employees working on or in connection with contracts subject to the SCA. See 41 USC 355, 29 CFR 4.180 -4.182, and 29 CFR 778.

7.  SIN 736 5 - Professional ServicesProfessional labor categories are fully burdened, but additional rates may be negotiated for ancillary items at the order level (i.e. clearances, licenses, certifications) Scope specific situations:Court Reporting services - Purchasing of labor category and if this labor results in a deliverable (i.e. report), a flat, one-time rate may apply. Medical Billing/Transcription services may have line rates versus hourly rates (these services fall under 736-1).  Rates are based on a minimum required DOL components, including but not limited to, health and welfare and paid sick leave

8. CLASSIFYING LABOR

Customers are advised to review staff augmentation requirements and select the most appropriate labor classes before issuing a formal RFI or RFP.  Labor should be classified as either Wage Grade or Professional. GSA does not make a determination as to whether a

position should be classified as professional or non-professional Wage Grade.  Vendors indicate the class in their approved GSA Contract Price List.

It is important to note that classifications are subject to Department of Labor rules and definitions, and are subject to Department of Labor audits.  Professional labor categories are NOT subject to the Service Contract Act. See:  SCA Labor Equivalency.

All  non-professional labor categories are subject to the Service Contract Act.  If a labor category is not listed within the applicable Wage Determination (www.wdol.gov) and is not professional, customers should review the Service Contract Act Directory of  Occupations (http://www.dol.gov/whd/regs/compliance/wage/.   If you can make a reasonable relationship between your proposed labor category and a category listed on the SCA Directory of Occupations,  provide a cross reference showing which DOL position relates to the position you seek.

If you are unable to make a reasonable relationship between the identified labor category and a category listed on the SCA Directory of Occupations, review the following instructions in accordance with the DOL SCA Conformance Process:

http://www.dol.gov/whd/recovery/pwrb/Tab7SCACnfrmncPrcss.pdf.

Service Employee

The term service employee as defined in Section 8 of the Act does not include persons employed in a bona fide executive, administrative, or professional capacity as those terms are defined in 29 CFR part 541. Employees within the definition of service employee who are employed in an executive, administrative, or professional capacity are not excluded from coverage, however, even though they are highly paid, if they fail to meet the tests set forth in 29 CFR part 541. Thus, such employees as laboratory technicians, draftsmen, and air ambulance pilots, though they require a high level of skill to perform their duties and may meet the salary requirements of the regulations in part 541 of this title, are ordinarily covered by the Act's provisions because they do not typically meet the other requirements of those regulations.

Therefore, for the professional scope determination exercise, if the employee meets both the specific job duties and salary tests of Exemption 541 the employee cannot be added and/or incorporated into the schedule contract as proposed.

Administrative Duties

o  Primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers

o  Primary duty includes the exercise of discretion and independent judgment with respect to matters of significance

Professional Duties

o Primary duty is the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction

o Primary duty is the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor

Executive Duties

o Primary duty is management of the enterprise or of a customarily recognized department or subdivision

o Customarily and regularly directs the work of two or more other employees

o Authority to hire or fire other employees or recommendations as to the hiring, firing, advancement, promotion or other change of status of other employees given particular weight, AND

Salary Basis Test

o Regularly receives a predetermined amount of compensation each pay period (on a weekly or less frequent basis)

o The compensation cannot be reduced because of variations in the quality or quantity of the work performed

o Must be paid the full salary for any week in which the employee performs any work

o Need not be paid for any workweek when no work is performed

NOTE ON GSA CONTRACT PRICING

GSA Schedule 736 vendor  pricing is based upon their Commercial Rates and  conforms with DOL requirements and includes, at a minimum : Wage Determination Base Rate+Health and Welfare+Holiday %+ Vacation %+Payroll %+ Overhead%+ Profit %= subtotal (Net GSA Price) + IFF = Total GSA Bill Rate.

The Wage Determination Base Rate is subject to change based upon locality (place of performance).

SPECIAL NOTES ON COURT REPORTING

GSA Contract Vendors offering Court Reporting are recommended to conform to the National Court Reporting Association (NCRA)  (http://www.ncra.org/ guidelines. The recommended method is as follows:

a. No fewer than 25 typed lines on standard 8-1/2 x 11 paper.b. No fewer than nine or 10 characters to the typed inch.

c. Left-hand margin to be set at no more than 1-3/4 inches.d. Right-hand margin to be set at no more than 3/8 inch.e. Each question and answer to begin on a separate line.f.  Each question and answer to begin no more than five spaces  from the left-hand margin with no more than five spaces from the Q and A to the text.g. Carry-over Q&A lines to begin at the left-hand margin.h. Colloquy material to begin no more than 15 spaces from the left-hand margin, with carryover colloquy to the left-hand margin.i.  Quoted material to begin no more than 15 spaces from the left-hand margin, with carry-over lines to begin no more than 10 spaces from the left-hand margin.j.  Parentheticals and exhibits markings to begin no more than 15 spaces from the left-hand margin, with carry-over lines to begin no more than 15 spaces from the left-hand margin.

They are advised to adhere to the Transcript Formatting Guidelines as set forth in comment 9202 of the Code of Professional Ethics of the National Court Reporters Association for such categories as Depositions, Court Appearances, Meetings, Conferences, and Administrative Hearings, etc.

Some services should be negotiated At the task order level: specify and describe any changes or requirements such as Appearance Fee, shipping rates for different shipping times, prices per additional transcript, videography services and resulting digital or electronic copies, fees for technical/semi-technical/non-technical transcription, and any other additional services.

Pricing normally includes a firm fixed price per transcribed page based upon the following typical delivery times: Same Day, Next Day, Progression of days from 2 to 10 for delivery.

9.   CONTRACTOR RESPONSIBILITY & GUIDANCE

All MAS 736 vendors are small businesses.  If a business exceeds the SBA size standard ($27.5 MILLION), they can maintain their small business designation until expiration of GSA MAS contract.  If this occurs, the vendor may continue to the natural end date of the current Customer-Issued Task  Order but may not accept new orders after the GSA MAS expiration date.

OCONUS PROVISIONS:Overseas employment of Legal Aliens is subject to a minimum 3 year waiting period in order for the Legal Alien to be eligible to be employed under a Temp Help contract.  The use of Non US Citizens is prohibited.Unless otherwise noted in the GSA Price List, all Schedule 736 contracts are Worldwide in Scope. However, vendors may elect not to provide staff in all geographic regions.

The SCA applies to all work performed within the United States. For purposes of the SCA, the term United States; includes any State, the District of Columbia, Puerto Rico, the Virgin Islands, Outer Continental Shelf lands as defined in the Outer Continental Shelf Lands Act, American Samoa, Guam, Wake Island, Johnston Island, and the Commonwealth of the Northern Mariana Islands. The SCA does not apply to work performed in any other territory under the jurisdiction of the United States or any United States base or possession within a foreign country. Also, the SCA does not apply to work performed on ships operating in international or foreign waters. If a portion of the contract services is performed within the United States and a portion is performed outside the United States, the SCA applies to the portion performed in the United States.

CERTIFICATIONS & LICENSES

Who foots the cost vendor or customer?  Negotiable?Customer Agencies must identify any required licenses or certifications required as a condition of employment in their SOW. The Customer may elect to have the Vendor provide fully certified and/or licensed personnel. The vendor may adjust its pricing based upon the direct costs.  This may be negotiated prior to award or at the Task Order Level.   

10.   ORDER PLACEMENT & PAYMENT

Subject to additional FAR 8.4  requirements based upon the estimated dollar value of the procurement, the following process stages should be followed:

Acquisition Planning: 1. Define Requirement:  GSA can provide Scope Reviews 2. Issue: GSA can assist in developing Vendor Pools 3. Evaluate: GSA may assist in developing criteria 4. Award:  Award Task Orders against the GSA Schedule Contract 5. Administer: Self Service or Assisted Acquisition

NOTE: The Simplified Acquisition Threshold shall be raised to $10,000. Ordering activities may use the SMARTPAY process under this threshold.

Payment for Temp Services is 30 days ARO.  CORs are urged to approved time cards and certify hours in a timely manner to avoid INTEREST CHARGES.  Payments are subject to Prompt Payment Discounts.

GEOGRAPHICAL SCOPEThe SCA applies to all work performed within the United States. For purposes of the SCA, the term "United States" includes any State, the District of Columbia, Puerto Rico, the Virgin Islands, Outer Continental Shelf lands as defined in the Outer

Continental Shelf Lands Act, American Samoa, Guam, Wake Island, Johnston Island, and the Commonwealth of the Northern Mariana Islands. The SCA does not apply to work performed in any other territory under the jurisdiction of the United States or any United States base or possession within a foreign country. Also, the SCA does not apply to work performed on ships operating in international or foreign waters. If a portion of the contract services is performed within the United States and a portion is performed outside the United States, the SCA applies to the portion performed in the United States.

The following ordering methods apply to Temp Help:

SMARTPAY  Government Credit Card (Preferred)

Requisition

Fedstrip & Milstrip

MIPR

Purchase Order

Task Order

GSA SmartPay®   Government Purchase   Card (Preferred)

·         Increase savings to your agency by paying for your order using a GSA SmartPay purchase card.  When used as method of payment, the card generates refunds which accrue back to your agency and can be reinvested in supporting mission delivery.  No other government payment method generates such refunds, which are legal for your agency to accept. (These refunds are paid to your agency by the GSA SmartPay contractor bank in accordance with payment instructions your agency headquarters has established.  These refunds do not come from vendors under this schedule.)

·         Note the term “card” also encompasses GSA SmartPay cardless/virtual and mobile payment solutions.

In accordance with Federal Acquisition Regulation (FAR) subpart 13.201, The GSA SmartPay purchase card is the preferred method of payment for the Federal Government, for supplies and services that are at or below the Micro-Purchase Threshold (MPT).

For orders and payments in excess of the MPT, FAR 13.301 states:

Agency procedures should not limit the use of the Government-wide commercial purchase card to micro-purchases. Agency procedures should encourage use of the card in greater dollar amounts by contracting officers to place orders and to pay for purchases against contracts established under FAR Part 8 procedures, when authorized; and to place orders and/or make payment under other contractual instruments, when agreed to by the

contractor. See FAR 32.1110(d) for instructions for use of the appropriate clause when payment under a written contract will be made through use of the card.

(c) The Government-wide commercial purchase card may be used to—

(1) Make micro-purchases (as noted above);

(2) Place a task or delivery order (if authorized in the basic contract, basic   ordering agreement, or blanket purchase agreement); or (3) Make payments, when the contractor agrees to accept payment by the card (but see FAR 32.1108(b)(2)). As noted above, for purchases above the micro-purchase threshold, the purchase card may be used as a payment mechanism under a contract. Note the purchase card alone is NOT a contracting mechanism for action in excess of the MPT.

All purchase card accounts are considered Centrally Billed Accounts (CBAs) and are therefore US tax exempt.

The GSA SmartPay Program is designated by OMB as a “Best In Class,” preferred government-wide solution and is widely recognized as a ‘good-for-government’ purchasing solution which should be used by all agencies/organizations.  For further information on the GSA SmartPay charge card and related payment services program, please visit www.smartpay.gsa.gov.

APPENDIX

Regulatory Reference 5 CFR Sec 300.501-507

5 CFR Sec. 300.501TITLE 5--ADMINISTRATIVE PERSONNELCHAPTER I --OFFICE OF PERSONNEL MANAGEMENTSUBCHAPTER B --CIVIL SERVICE REGULATIONSPART 300 --EMPLOYMENT (GENERAL)Subpart E --Use of Private Sector Temporaries

Sec. 300.501  Definitions.For purposes of this subpart:(a) A temporary help service firm is a private sector entity which quickly provides other organizations with specific services performed by its pool of employees, possessing the appropriate work skills, for brief or intermittent periods. The firm is the legally responsible employer and maintains that relationship during the time its employees are assigned to a client. The firm, not the client organization, recruits, tests, hires, trains, assigns, pays, provides benefits and leave to, and as necessary, addresses performance problems, disciplines, and terminates its employees. Among other employer obligations, the firm is responsible for payroll deductions and payment of income taxes, social security (FICA), unemployment insurance, and workers' compensation, and shall provide required liability insurance and bonding.

(b) Private sector temporaries or outside temporaries are those employees of a temporary help service firm who are supervised and paid by that firm and whom that firm assigns to various client organizations who have contracted for the temporary use of their skills when required.(c) Parental and family responsibilities are defined in OPM issuances and include situations such as absence for pregnancy, childbirth, child care, and care for elderly or infirm parents or other dependents.(d) A Federal supervisor of Federal employees is defined in 5 U.S.C. 7103(a)(10) as an individual employed by an agency having authority in the interest of the agency to hire, direct, assign, promote, reward, transfer, furlough, layoff, recall, suspend, discipline, or remove employees, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgment * * *(e) A critical need is a sudden or unexpected occurrence; an emergency; a pressing necessity; or an exigency. Such occasions are characterized by additional work or deadlines required by statute, Executive order, court order, regulation, or formal directive from the head of an agency or subordinate official authorized to take final action on behalf of the agency head. A recurring, cyclical peak workload, by itself, is not a critical need.(f) A local commuting area is defined in part 351 of this chapter.[54 FR 3766, Jan. 25, 1989, as amended at 66 FR 66710, Dec. 27, 2001]

Sec. 300.502  Coverage.(a) These regulations apply to the competitive service and to Schedules A and B in the excepted service.(b) Agencies may not use temporary help services for the Senior Executive Service or for the work of managerial or supervisory positions.[61 FR 19510, May 2, 1996]

Sec. 300.503  Conditions for using private sector temporaries.An agency may enter into a contract or other procurement arrangement with a temporary help service firm for the brief or intermittent use of the skills of private sector temporaries, when required, and may call for those services, subject to these conditions:(a) One of the following short-term situations exists--    (1) An employee is absent for a temporary period because of a personal need including emergency, accident, illness, parental or family responsibilities, or mandatory jury service, but not including vacations or other circumstances which are not shown to be compelling in the judgment of the agency, or    (2) An agency must carry out work for a temporary period whichcannot be delayed in the judgment of the agency because of a criticalneed.(b) The need cannot be met with current employees or through the direct appointment of temporary employees within the time available by the date, and for the duration of time, help is needed. At minimum, this should include an agency determination that there are no qualified candidates on the applicant supply file and on the reemployment priority list (both of which must provide preference for veterans), and no qualified disabled veterans with a compensable service-connected disability of 30 percent or more under 5 U.S.C. 3112, who are immediately available for temporary appointment of the duration required, and that employees cannot be reassigned or detailed without causing undue delay in their regular work. In instances where a need is foreseeable, as when approval of employee absence is requested well in advance, an agency may have sufficient time to follow the temporary appointment recruiting requirements, including veterans' preference found in 5 CFR part 316 to determine whether qualified candidates are available by the date needed and for the length of service required.(c) These services shall not be used:

(1) In lieu of the regular recruitment and hiring procedures under the civil service laws for permanent appointment in the competitive civil service, or(2) To displace a Federal employee.(3) To circumvent controls on employment levels.(4) In lieu of appointing a surplus or displaced Federal employee as required by 5 CFR part 330, subpart F (Agency Career Transition Assistance Plan for Displaced Employees) and subpart G (Interagency Career Transition Assistance Plan for Displaced Employees.)

[54 FR 3766, Jan. 25, 1989, as amended at 61 FR 19510, May 2, 1996; 66 FR 66710, Dec. 27, 2001]

Sec. 300.504  Prohibition on employer-employee relationshipNo employer-employee relationship is created by an agency's use of private sector temporaries under these regulations. Services furnished by temporary help firms shall be performed by their employees who shall not be considered or treated as Federal employees for any purpose, shall not be regarded as performing a personal service, and shall not be eligible for civil service employee benefits, including retirement. Further, to avoid creating any appearance of such a relationship, agencies shall observe the following requirements:(a) Time limit on use of temporary help service firm. An agency may use a temporary help service firm(s) in a single situation, as defined in Sec. 300.503, initially for no more than 120 workdays. Provided the situation continues to exist beyond the initial 120 workdays, the agency may extend its use of temporary help services up to the maximum limit of 240 workdays.(b) Time limit on use of individual employee of a temporary help service firm.

(1) An individual employee of any temporary help firm may work at a major organizational element (headquarters or field) of an agency for up to 120 workdays in a 24-month period. The 24-month period begins on the first day of assignment.(2) An agency may make an exception for an individual to work up to a maximum of 240 work days only when the agency has determined that using the services of the same individual for the same situation will prevent significant delay.

(c) Individual employees of a temporary help firm providing temporary service to a Federal agency may be eligible for competitive civil service employment only if appropriate civil service hiring procedures are applied to them.(d) Agencies shall train their employees in appropriate procedures for interaction with private sector temporaries to assure that the supervisory responsibilities identified in paragraph (a) of Sec. 300.501 of this subpart are carried out by the temporary help service firm. At the same time, agencies must give technical, task-related instructions to private sector temporaries including orientation, assignment of tasks, and review of work products, in order that the temporaries may properly perform their services under the contract.[54 FR 3766, Jan. 25, 1989, as amended at 61 FR 19511, May 2, 1996]

Sec. 300.505  Relationship of civil service procedures.Agencies continue to have full authority to meet their temporary needs by various means, for example, redistributing work, authorizing overtime, using in-house pools, and making details or time-limited promotions of current employees. In addition, agencies may appoint individuals as civil service employees on various work schedules appropriate for the work to be performed.[61 FR 19511, May 2, 1996]

Sec. 300.506  Requirements of procurement.(a) Agencies must follow the Federal procurement laws and the Federal Acquisition Regulation, as applicable, in procuring services from the private sector.(b) Agencies should make full use of the provisions of the Federal procurement system to make clear that the firm is the legally responsible employer and to specify the obligations the firm will have to meet to provide effective performance including such matters as the types and levels of skills to be provided, deadlines for providing service, liability insurance, and, when necessary, security requirements. The Federal procurement system also requires contractors to comply with affirmative action requirements to employ and advance in employment qualified disabled and Vietnam era veterans as provided in 41 CFR part 60-250, and with public policy programs including equal employment opportunity, handicapped employment, and small businesses.

Sec. 300.507  Documentation and oversight.Agencies are required to maintain records and provide oversight to establish that their use of temporary help service firms is consistent with these regulations. As needed, OPM may require agencies to provide information on their use of temporary help service firms.

[61 FR 19511, May 2, 1996]

Example of DOL OCCUPATIONAL CLASSIFICATION

Wage and Hour Division (WHD)Service Contract Act Directory of Occupations29000 Technical OccupationsThis category includes occupations concerned with providing technical assistance to engineers and scientists in both laboratory and production activities as well as occupations concerned with independently operating and servicing technical equipment and systems. Characteristic of occupations in this category is the requirements for a knowledge of scientific, engineering, and mathematical theories, principles and techniques that is less than full professional knowledge but which nevertheless enables the technician to understand how and why a specific device or system operates.The technician solves practical problems encountered in fields of specialization, such as those concerned with development of electrical and electronic circuits, and establishment of testing methods for electrical, electronic, electromechanical, and hydromechanical devices and mechanisms; application of engineering principles in solving design , development, and modification problems of parts or assemblies for products or systems; and application of natural and physical science principles to basic or applied research problems in fields, such as metallurgy, chemistry, and physics. May perform technical procedures and related activities independently.Workers with the title of Technician who are concerned primarily with maintenance and repair are classified with Mechanics and Maintenance and Repair Occupations.29010 Air Traffic Control Specialist, Center29011 Air Traffic Control Specialist, Station29012 Air Traffic Control Specialist, Terminal29023 Archeological Technician I29024 Archeological Technician II29025 Archeological Technician III29030 Cartographic Technician29035 Computer Based Training (CBT) Specialist/Instructor29040 Civil Engineering Technician29061 Drafter I29062 Drafter II29063 Drafter III29064 Drafter IV29081 Engineering Technician I29082 Engineering Technician II29083 Engineering Technician III29084 Engineering Technician IV29085 Engineering Technician V29086 Engineering Technician VI29090 Environmental Technician29100 Flight Simulator/Instructor (Pilot)29150 Graphic Artist29160 Instructor29210 Laboratory Technician (Laboratory Tester)29240 Mathematical Technician29390 Photo-Optics Technician29480 Technical Writer29490 Unexploded Ordnance Technician29620 Weather Observer, Senior29621 Weather Observer, Combined Upper Air and Surface Programs29360 Paralegal/Legal Assistant29361 Paralegal/Legal Assistant I29362 Paralegal/Legal Assistant II

29363 Paralegal/Legal Assistant III29364 Paralegal Specialist IV 

Overtime

1. U.S. DEPARTMENT OF LABOR CWHSSA/OVERTIME PAY ON PREVAILING WAGE RESOURCE BOOK SCA CONTRACTS

2. 1 3. OVERTIME REQUIREMENTS OF FLSA AND CWHSSA 4. ◊ The SCA does not require overtime pay, but FLSA and/or CWHSSA overtime

pay requirements may apply to SCA contracts. 29 C.F.R. §§ 4.180 and 4.181. 5. ◊ FLSA has the broadest application, and contractors/subcontractors

performing on contracts subject to the SCA may be required to compensate their non-exempt employees working on or in connection with SCA-covered contracts for overtime work pursuant to the FLSA overtime pay standards.

6. ◊ CWHSSA applies to SCA contracts in excess of applicable monetary thresholds that may require or involve the employment of laborers, mechanics, guards, or watchmen. CWHSSA applies to federal DBA and SCA contracts in excess of $150,000 that are subject to Federal Acquisition Regulation (FAR) procurement. 48 C.F.R. § 22.305. CWHSSA also applies to SCA contracts in excess of $100,000 that are not subject to FAR procurement.

7. ◊ CWHSSA applies to laborers, mechanics, guards, and watchmen for the time spent on covered contract work only (i.e., all time each employee spent working on covered contracts - excluding all commercial, non-government work). (Service employees on the contract who are not laborers, mechanics, guards or watchmen, are not subject to CWHSSA).

8. ◊ FLSA requires the payment of time and one-half the “regular rate of pay” for all hours worked in excess of 40 hours in a week. See 29 C.F.R. §§ 778.107-778.109.

9. ◊ CWHSSA requires the payment of time and one-half the “basic rate of pay” for all hours worked in excess of 40 hours in a week. The “basic rate of pay” under CWHSSA is the individual’s straight time hourly rate and cannot be less than the required “basic hourly rate” (generally listed in the “RATE” column) in an applicable SCA wage determination.

10. ◊ In computing overtime obligations under the FLSA and CWHSSA, the contractor may exclude contributions to “bona fide” fringe benefit plans and/or cash payments made to meet fringe benefit requirements in an applicable SCA wage determination. 29 C.F.R.§§ 29 C.F.R. §§ 4.177(e) and 778.7.

11. ◊ For example, for an employee who worked 44 hours on a covered contract as a janitor, where the wage determination rate for a janitor is $15.00 (basic hourly U.S. DEPARTMENT OF LABOR CWHSSA/OVERTIME PAY ON PREVAILING WAGE RESOURCE BOOK SCA CONTRACTS rate) plus cash

payments of $4.02 in lieu of health and welfare fringe benefits per hour per employee, the correct computations under the FLSA and CWHSSA would be:

12. 40 hours x $ 4.02 = $ 160.80 in fringe benefits 13. 44 hours x $15.00 = $ 660.00 for prevailing wages 14. 4 hours x $15.00 x ½ = $ 30.00 for FLSA and/or CWHSSA O/T 15. $ 850.80 16.Note that for a wage determination including the “average cost” benefits the

benefits would be computed for all hours worked ($4.02 x 44 = $176.88). 17. ◊ CWHSSA and FLSA do not require premium pay or overtime compensation

for work on holidays, weekends, or days of rest. 29 C.F.R. § 778.102. 18. ◊ CWHSSA and FLSA overtime pay requirements do not apply to non-work

hours, such as paid holidays and paid leave. Such hours are not counted in the computation of overtime pay required under these federal overtime laws. Their overtime pay requirements apply only to hours worked. 29 C.F.R. § 778.218. Rules concerning “Hours Worked” are at 29 C.F.R. § 785.

19. WORK IN MORE THAN ONE CLASSIFICATION IN A WEEK

20. ◊ When an employee in a single workweek works at two or more different types of work for which different non-overtime rates of pay have been established, his or her regular rate for that week is the weighted average of such rates. That is, the employee’s total earnings (except statutory exclusions) are computed to include compensation during the workweek from all such rates, and are then divided by the total number of hours worked at all jobs. 29 C.F.R. § 778.115.

21. ◊ An employee who performs two or more different kinds of work for which different straight time hourly rates are established may agree with the employer, in advance of the performance of the work, to be paid during overtime hours at a rate not less than one and one-half times the hourly non-overtime rate established for the type of work he or she will perform during such overtime hours. (Thus, under this arrangement, the overtime pay is calculated based on the “rate in effect” for the type of work being performed during the overtime hours.) Additional detail specifying requirements that must be met in relation to “Computing Overtime Pay on the Rate Applicable U.S. DEPARTMENT OF LABOR CWHSSA/OVERTIME PAY ON PREVAILING WAGE RESOURCE BOOK SCA CONTRACTS

Reference to the Type of Work Performed in Overtime Hours” are at 29 C.F.R. §§ 778.415-778.419; in particular, section 778.419 addresses “Hourly workers employed at two or more jobs.”

22. ◊ The following examples demonstrate two methods for computing the overtime premium pay under FLSA and/or CWHSSA for an employee who worked in different job classifications and at different rates of pay in the same workweek.

23. ◊◊ An employee is hired to perform work on a covered service contract in two job classifications: painter and electrician. The wage determination rate for an electrician is $22.00 (basic hourly rate). The wage determination rate for a painter is $20.00 (basic hourly rate).

24.Method 1: Computation of the overtime premium based on the “regular rate” for the workweek.

25. Step 1: Determine the straight time wages due, excluding fringe benefits: 26. 24 hours at the painter’s rate of $20.00 = $480.00 27. 20 hours at the electrician’s rate of $22.00 = 440.00 28. Total straight time wages = $920.00 29. Step 2: Calculate the “regular rate”: 30. $920.00/44 hours worked = $ 20.91 regular rate 31. Step 3: Compute the overtime premium due: 32. ½ ($20.91) x 4 overtime hours worked = $41.82 33. Method 2: Computation of the overtime premium based on the “rate in effect”

when the overtime hours were worked. (See section 7(g) of the FLSA.) 34. S M T W T F S 35. Painter hours 8 8 8 36. Electrician hours 8 8 4 37. In this example the overtime hours occurred on Saturday. The overtime

premium could be computed based as follows: ½ ($22.00) x 4 hours = $44

Appendix   PRICING MATRIX

Method Pricing 3 SCA Wage Determination (Non-Professional Labor Categories)

Method 2 Commercial Rates (Professional Labor Categories)

Method 1 Market Rates (Professional Labor Categories)

Transcription Method (Transcript/Court Report Deliverables)

SCA Compliance PrinciplesWHEN PRICING IS BASED ON SCA RATESThe SCA rates are built upon the following regulations:

�Payment of wages and fringe benefits (29 C.F.R. § 4.165)

�Bona fide Fringe Benefit Plans (29 C.F.R. § 4.171(a))

�Health & Welfare Fringe Benefits

�Paid Vacation Fringe Benefits (29 C.F.R. § 4.173(c)(1))

�Paid Holiday Fringe Benefits (29 C.F.R. § 4.174)

�Equivalent Fringe Benefits (29 C.F.R. § 4.177)

�Temporary & Part-time employment (29 C.F.R. § 4.176)

FSLA and SCA Implications

The FLSA (29 USC 201, et seq.) prescribes standards for the basic minimum wage and overtime pay that may affect SCA-covered contracts. The SCA interacts with the FLSA in three key ways:(a)Section 2(b)(1) of the SCA provides that no contractor or subcontractor shall pay any employee engaged in performing work on a covered contract less that the minimum wage specified under section 6(a)(1) of the FLSA. See 29 CFR 4.159.(a)Section 8(b) of the SCA defines the term “service employee” as any person engaged in the performance of a contract or that portion of a contract subject to the SCA except those employees in bona fide executive, administrative, or professional capacities as those terms are defined in the FLSA regulations found at 29 CFR 541. See 41 USC 357(b) and 29 CFR 4.113.(a)Section 6 of the SCA recognizes that other federal laws, such as the FLSA, may require overtime compensation to be paid to service employees working on or in connection with contracts subject to the SCA. See 41 USC 355, 29 CFR 4.180 -4.182, and 29 CFR 778.

SCA ExemptionsStatutory exemptions include the following (Out of scope):�Any contract covered by the DBA for construction, alteration and/or repair, including painting and decorating of public buildings or public works.�Any work required to be done in accordance with the provisions of the Walsh-Healey Public Contracts Act (PCA).�Any contract for the carriage of freight or personnel by vessel, airplane, bus, truck, express railway line, or oil or gas pipeline where published tariff rates are in effect�Any contract for the furnishing of services by radio, telephone, telegraph, or cable companies subject to the Communications Act of 1934�Any contract for public utility services, including electric light and power, water, steam, and gas.

�Any employment contract providing for direct services to a federal agency by an individual or individuals.�Any contract with the U.S. Postal Service (USPS), the principal purpose of which is the operation of postal contract stations.

What is the definition of a Service Employee?

The term service employee as defined in Section 8 of the Act does not include persons employed in a bona fide executive, administrative, or professional capacity as those terms are defined in 29 CFR part 541. Employees within the definition of service employee who are employed in an executive, administrative, or professional capacity are not excluded from coverage, however, even though they are highly paid, if they fail to meet the tests set forth in 29 CFR part 541. Thus, such employees as laboratory technicians, draftsmen, and air ambulance pilots, though they require a high level of skill to perform their duties and may meet the salary requirements of the regulations in part 541 of this title, are ordinarily covered by the Act's provisions because they do not typically meet the other requirements of those regulations. Stated alternately –Coverage of the  SCA does not extend to contracts for services to be performed exclusively by persons who are not service employees (i.e., persons who qualify as bona fide executive, administrative, or professional personnel as defined in the FLSA regulations found at 29 CFR 541).Therefore, for the professional scope determination exercise,  if the employee meets both the specific job duties and salary tests of Exemption 541 the employee cannot be added and/or incorporated into the schedule contract as proposed.

SCA Exemption Determination

(must meet both Job and Salary Tests)

Administrative Duties�Primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers�Primary duty includes the exercise of discretion and independent judgment with respect to matters of significanceProfessional Duties�Primary duty is the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction�Primary duty is the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavorExecutive Duties�Primary duty is management of the enterprise or of a customarily recognized department or subdivision�Customarily and regularly directs the work of two or more other employees�Authority to hire or fire other employees or recommendations as to the hiring, firing, advancement, promotion or other change of status of other employees given particular weight

SCA Exemption Determination

Salary Basis Test�Regularly receives a predetermined amount of compensation each pay period (on a weekly or less frequent basis)

�The compensation cannot be reduced because of variations in the quality or quantity of the work performed

�Must be paid the full salary for any week in which the employee performs any work

�Need not be paid for any workweek when no work is performed

Pricing Considerations

Nonprofessional Employees Subject to the Service Contract Act

oThe SCA wage determination sets forth the minimum monetary wages and fringe benefits that contractors and their subcontractors must pay service employees working on covered contracts.i.Prevailing in the locality wage determinations set forth minimum monetary wages and fringe benefits determined to be prevailing for various classes of service employees in the locality of the service contract after giving due consideration to the rates applicable to such service employees if directly hired by the government.ii.Section 4(c), or successorship, wage determinations set forth the wages and benefits, including accrued and prospective increases, contained in CBAs reached as a result of arm’s-length negotiations that were applicable to service employees employed on predecessor contracts in the same locality.●Professional Employeesi.Competitive with market/catalog prices.ii.Competitive with open market indexesNOTE:  Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees. Section 13(a)(1) and Section 13(a)(17) also exempt certain computer employees. To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week.  Job titles do not determine exempt status.

SCA Overtime Compliance.

�SCA does not provide premium rates for overtime hours of work, but recognizes other Federal laws that do••Fair Labor Standards Act (FLSA) (29 U.S.C. § 201, et seq.) has broadest application••Contract Work Hours and Safety Standards Act (CWHSSA) (40 U.S.C. 3701 et seq.) applies to federal DBA and SCA contracts in excess of $150,000 that are subject to Federal Acquisition Regulation (FAR) procurement. 48 C.F.R. § 22.305 that employ “laborers” and “mechanics.”   CWHSSA also applies to DBRA and SCA contracts in excess of $100,000 that are not subject to FAR procurement, such as contracts with non-appropriated fund instrumentalities

Methodology for determining overtime payment�Determined in same manner under both laws:•Calculated at 1-1/2 times employee’s basic hourly rate of pay for all hours worked over 40  in a workweek••Liquidated damages can be assessed under CWHSSA when overtime not  properly paid

Contractual Actions

�Take into consideration

�52.222-43 Fair Labor Standards Act and Services Act Price Adjustment (Multiple Year and Options Contracts)

�Professional 736-5 Labor

�EPA with Market Rates- (I-FSS-969 Economic Price Adjustment— FSS Multiple Award Schedule (Jan 2002)

�EPA with Commercial Rates (552.216-70 Economic Price Adjustment— FSS Multiple Award Schedule Contracts (Sep 1999)

�Health and Welfare $4.41

�Preponderance of the Work, can request (2) either where the vendor intends to do the work or the highest in the nation.

end