How Did We Get So Confused? Explaining Why Our Government Contracts Wage Laws Ended Up With Two Different Names.

“History is Written by Victors.”

--Attributed to Winston Churchill

A common source of confusion exists  in the naming of our government contracts wage laws. Unfortunately, the service law and the construction law have two different names which co-exist side by side.  The Service Contract Act (“SCA”) is also known as the Service Contact Labor Standards (“SCLS”). And the Davis-Bacon Act (“DBA”) is also known as the Construction Wage Rate Requirements (“CWRR”) statute. They are two names for the same thing.  

The story begins with a rewrite of the United states Code.  A commission was established to clean up the statutory provisions of the US code. The members  were not supposed to make substantive changes. But they were empowered to make non-substantive  modifications such as using new naming preferences. As part of that power, they decided to rename the government contract wage and hour laws.  By virtue of Public Law 111-350 (enacted January 4, 2011), new codified version of Title 41 of the United States Code was born. And therein is how mechanically the formerly named SCA became the SCLS, and the formerly named DBA became the CWRR. 

The statutory code changes quite naturally then flowed into a rewrite of the Federal Acquisition Regulation (“FAR”). On September 18, 2012, a proposed rule was published to change all references to the “Service Contract Act” or “SCA” in the FAR to the “Service Contract Labor Standards statute” or “SCLS statute,” respectively. 77 Fed. Reg. 57,950. These changes would conform the naming conventions in the procurement regulations to the new statutory naming conventions. And that rule eventually became final. So, if you read the FAR  today you will see the service and construction wage laws now referred to as the SCLS and the CWRR. Under the FAR provisions the original names are referred to as the “formerly known”  name. See, e.g., FAR 22.403-1 and 22.1000. 

Of course, the writers  of the U.S. Code  probably had no idea they were stepping on naming conventions which went back a to the 1931 enactment of the DBA. The U.S. Department of  Labor (“DOL”) had its own set of regulations, since they were charged with the enforcement of these wage laws. And DOL has jealously guarded that authority now going on 92 years. DOL didn’t take to kindly to the Commission’s rewrite of this portion of the U.S. Code, nor to the changes made by the FAR Council to the procurement  regulations. DOL decided to hang on to its traditional statutory names. Thus, the DOL regulations continue to exclusively refer to these laws by their original enactment name – i.e., the SCA and the DBA. The upshot is that we have two sets of regulations the FAR and volume 29 of the CFR) which refer to these same wage statutes using different names. 

I find myself to be in DOL’s corner on this subject. Maybe that makes me a crank, but I don’t like change for change’s sake. My constant perhaps reactionary lament is why can’t things remain the same. This essentially conservative  viewpoint, of course, ignores the maxim that one thing you can count on is change. But I find comfort in the original enactment names. They embody a certain constancy in the law. and they memorializes the  legislative sponsors , be it Senator Davis and Representative Bacon, or less frequently invoked but still kept in mind by DOL, the McNamara-O’Hara  sponsors of the SCA. They are a piece of history and belong to the ages. It is a form of minor immortality to get your name on some important legislation. To cavalierly discard that history and meaning  with some anodyne name assigned buy a uniformed committee strikes me as wrong-headed.   

I cast my lot with DOL. Long live the McNamara-O’Hara Service Contract Act  and the Davis-Bacon Act!