TITLE VIII - AMENDMENTS AND REPEALS The Section has not had the opportunity or the time to review this extensive list and anticipates that such a review will be accomplished in the future. The Section commends Senator Chiles and his staff for a masterful effort in adjusting S.3005, now reintroduced as S.1264, to reflect the needs of the procurement community. Certain minor language deficiencies have been noted in the bill which will be brought to the Subcommittee Staff's attention at a later time, but the major considerations and recommendations of the Section are set forth herein. Respectfully submitted, Поч sautchell Roy S. Mitchell, Chairman June 1977. Section of Public Contract Law Amendment of Service Contract Act of 1965 Be It Resolved, That the American Bar Association urge the Congress of the United States to amend Section 2(a) of the Service Contract Act of 1965, 41 U.S.C. § 351 et seq., in the following respects: 1. By adding at the end of Section 2(a)(1) the following: Notwithstanding the foregoing, only the minimum wage specified under Section 6(a)(1) of the Fair Labor Standards Act, as amended, (52 Stat. 1060; 29 U.S.C. 201 et seq.) shall be specified as the minimum monetary wages to be paid the various classes of service employees where there is no clearly dominant rate, supportable by accurate wage data, existing for such classes of employees in the locality where the work is to be performed. Prevailing rates determined by the Secretary of Labor or his authorized representative for employees engaged in the construction, alteration or repair of public works pursuant to the provisions of the Davis-Bacon Act (40 U.S.C. 276A-276A-5) shall not be determined to be prevailing rates for service employees. 2. By adding at the end of Section 2(a)(2) the following: Notwithstanding the foregoing provisions and except where such fringe benefits are provided for in a collective bargaining agreement covering such employees, no provision herein specifying the fringe benefits to be furnished service employees shall be required where there are no clearly dominant fringe benefits prevailing in the locality where the work is to be performed. PC-8-76-S33 Public Contract Law Section Amendment of Service Contract Act of 1965 Be It Resolved, That the American Bar Association urges the Congress of the United States to amend the Service Contract Act of 1965, 41 U.S.C. §351 et seq., in the following respects: (1) To prohibit the importation into the locality where the work is to be performed of wage rates from a higher wage area by inserting "where the work is to be performed” after “locality” in Section 2(a)(i). (2) To eliminate the ambiguity which results from the inclusion in contracts of wage rates applicable to federal employees whose work duties may be significantly different than those to be performed by service employees under contract by repealing Section 2(a)(5). (3) To clarify that a successor contractor need not pay his service employees wage rates negotiated in a higher wage area by a predecessor contractor by inserting, “which is to be performed in the same locality” after "Act" in Section 4(c). (4) To specifically provide the right to judicial review of decisions of the Secretary of Labor under the act by adding the following Section 11: Section 11. A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action is entitled to judicial review thereof pursuant to Section 10 of the Administrative Procedure Act, 5 U.S.C. 702. Nothing contained herein shall be construed to prohibit the review by the Comptroller General of any agency action under this Act. PC-8-78-S30 Section 3 (e) defined "property" to exclude real property and leasehold interests therein. S.3005 included leasehold interests in real property. RECOMMENDATION It is recommended that leasehold interests in real REASONS FOR RECOMMENDATION 1. The Government acquired by lease a considerable amount This section requires that property and services will be acquired in accordance with the policies in Section 2 and will utilize one of the procurement methods authorized in Section 101(a). RECOMMENDATION The Section recommends that this section delete the reference to Section 2. REASONS FOR RECOMMENDATION 1. The selection of the procurement method has no relationship to the policy statements in Section 2. 2. The Section believes that it is inappropriate to SECTION 101 (a) (2) and (a) (3) RECOMMENDATION The word "competitive" should be deleted. The word "competitive" should also be deleted from the headings of Titles III and IV. REASON FOR RECOMMENDATION 1. Single Source Exceptions apply to Title II, Title III and Title IV. 2. The headings to the titles should be consistent with SECTION 101(b) This section provides that the methods described in Section 101(a) are "equally valid alternatives" and permit the Office of Federal Procurement Policy to establish criteria for the use of competitive negotiations, formal advertised procurement or competitive small purchase methods, in addition to those set forth in the statute. RECOMMENDATION Revise this section to read: "The method of acquiring property or services shall be selected on the basis of the nature of the product or service being acquired, the circumstances of the acquisition, and the policies set forth in this Act as implemented by criteria established by OFPP." REASONS FOR RECOMMENDATION 1. 2. The alternatives are not equally valid. OFPP should not have the authority to change the law. This section requires the Administrator of OFPP to develop one regulation for all federal agencies within two years after the date of enactment. The Section recommended before that a period of two years was unacceptable and recommended five years in lieu thereof. |