Should the contract be modified to incorporate the new CBA for the base period or should this CBA be effective in the next performance period?
Is the phase-in (transition period) considered part of performance start as it applies to FAR 22.1012-3?
1. The FAR references quoted below in pertinent part are applicable to this response.
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FAR 22.1001 -- Definitions
As used in this subpart--
“Agency labor advisor” means an individual responsible for advising contracting agency officials on Federal contract labor matters.
FAR 22.1002-3 -- Wage Determinations Based on Collective Bargaining Agreements
(a) Successor contractors performing on contracts in excess of $2,500 for substantially the same services performed in the same locality must pay wages and fringe benefits (including accrued wages and benefits and prospective increases) at least equal to those contained in any bona fide collective bargaining agreement entered into under the predecessor contract. This requirement is self-executing and is not contingent upon incorporating a wage determination or the wage and fringe benefit terms of the predecessor contractor’s collective bargaining agreement in the successor contract.
FAR 22.1007 -- Requirement to Obtain Wage Determinations
The contracting officer shall obtain wage determinations for the following service contracts:
(b) Each contract modification which brings the contract above $2,500 and --
(1) Extends the existing contract pursuant to an option clause or otherwise;
FAR 22.1008-1 – Obtaining Wage Determinations
(f) If the Contracting Officer has questions regarding the procedures for obtaining a wage determination, or questions regarding the selection of a wage determination, the Contracting Officer should request assistance from the agency labor advisor.
FAR 22.1008-2 -- Section 4(c) Successorship with Incumbent Contractor Collective Bargaining Agreement
(d)(2) If the Contracting Officer has timely received the collective bargaining agreement, the Contracting Officer may use the WDOL website to prepare a wage determination referencing the agreement and incorporate that wage determination, attached to a complete copy of the collective bargaining agreement, into the successor contract action.
2. With regard to the first question of this inquiry, we believe that the contract need not be modified to incorporate the new CBA for the base period because, pursuant to FAR 22.1002-3(a), the requirement for successor contractors to pay wages and fringe benefits at least equal to those contained in any bona fide collective bargaining agreement entered into under the predecessor contract is self executing and is not contingent upon incorporating a wage determination or the wage and fringe benefit terms of the predecessor contractor’s collective bargaining agreement in the successor contract. Furthermore, FAR 22.1008-2(d)(2) stipulates that the Contracting Officer “may” (as opposed to "shall") attach a complete copy of the collective bargaining agreement into the successor contract action. Pursuant to FAR 22.1007(b)(1), the new CBA would be effective in the next performance period because such performance period would be the result of an option clause extending the contract.
3. Regarding the second question of this inquiry, i.e., “Is the phase-in (transition period) considered part of performance start as it applies to FAR 22.1012-3?”, we cannot provide a response because there is no citation “FAR 22.1012-3”. Therefore, pursuant to FAR 22.1008-1(f), we recommend that the requester consult their Agency labor advisor for assistance with regard to this matter.