OFFICE OF THE UNDER SECRETARY OF DEFENSE

3000 DEFENSE, PENTAGON

WASHINGTON, DC, 20301-3000

MEMORANDUM FOR DIRECT'ORS OF DEFEENSE AGENCIES

SUBJECT: Class Deviation- -Applicability of the Service Contract Act to Subcontracts for the Acquisition of Certain Commercia1 Services

Effective August 25, 2000, all military departments and defense contracting activities shall deviate from the requirements of Federal Acquisition Regulation 12.504, 22.1003-4, and the clause at 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders--Commercial Items, when contracting for commercial services. Instead, contracting officers shall--

· Use the attached FAR 12.504 and 22.1003-4 language; and

· Add the parenthetical "Subcontracts for certain commercial services may be exempt from coverage if they meet the criteria in FAR 22.1103-4(c) or (d) (see DoD class deviation number 2000-O0006)' after the entry for 52.222-41, Service Contract Act of 1965, As Amended (41 U.S.C. 351, et seq.), within the clause at 52.212-5 (c).

On July 26, 2000, and pursuant to Section 4(b) of the McNamara-O'Hara Service Contract Act (SCAL, the Secretary of Labor issued a temporary exemption that provides that the requirements of the SCA are not applicable to subcontracts for the acquisition of certain commercial services. The Secretary of Labor determined that this exemption for certain subcontracts was necessary and proper in the public interest to avoid the serious impairment of government DP (DAR) business, and is in accord with the remedial purpose of the SCA to protect prevailing labor.

This class deviation implements the Secretary of Labor's temporary exemption. This class deviation is effective through August 25, 2001, or until this policy is addressed in the FAR, whichever event occurs first.


Deidre A. Lee

Director, Defense Procurement

Attachment:




DAR Tracking Dumber. 2000-O0006

PART 12-ACQUISITIONS OF COMMERCIAL ITEMS

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12.504 Applicability of certain laws to subcontracts for the acquisition of commercial items.

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(c) The applicability of the following laws has been modified in regards to subcontracts at any tier for the acquisition of commercial items or commercial components:
(1) * * *
(2) * * *
(3) * * *
[(4) 41 U.S.C. 351, Service Contract Act of 1965 (see 22.1003-4(c) and (d).]

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PART 22-- Application of Labor Laws to Government Acquisitions

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22.1003-4 -- Administrative Limitations, Variations, Tolerances, and Exemptions.

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[(c)(1) Through July 26, 2001, the Secretary of Labor has exempted subcontracts principally for the following commercial services from all provisions of the Act if the conditions at paragraph (c)(2) of this subsection are met: the maintenance, calibration, repair, and/or installation of information technology.
(2) The exemption at paragraph (c)(1) of this subsection applies if the following conditions are met:

(3) If the Department of Labor determines that any of the above requirements for exemption have not been met with respect to a subcontract, the exemption will be deemed inapplicable, and the contractor may be responsible for compliance with the Act, effective as of the date of contract award.
(d) (1) Through July 26, 2001, the Secretary of Labor has exempted subcontracts for the following commercial item services from all provisions of the Act if the conditions at
paragraph (d) (2) of this subsection are met.

(2) The exemption for the services in paragraph (d)(1) of this subsection apply if the following conditions are met:

(3) If the Department of Labor determines that any of the above requirements for exemption has not been met with respect to a subcontract, the exception will be deemed inapplicable for that subcontract, and the contractor might be responsible for compliance with the Act, effective as of the date of contract award.]
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