The Deviants Are Agency Actions Which Are Taken Without Securing a FAR Deviation: SCA, DBA and NLRA Additive Contractual Terms

In the U.S., you have to be a deviant or die of boredom.

—William S. Burroughs

Contracting  agency sometimes want to require special labor provisions in excess of those specified in the Federal Acquisition Regulation (“FAR”), such as recognizing unions, negotiating collective bargaining agreement, capping price adjustments for Service Contract Act (“SCA”) wage or benefit increases, or specifying higher wages than the SCA or the Davis-Bacon Act (“DBA”) require. However, such additive requirements likely constitute a deviation from the provisions of the FAR and thus must be presented to and approved by the FAR Council. That is a mandatory process.  

If the agency skips that approval process, solicitation provisions which conflict with existing standard mandatory FAR rules and clauses may not be valid or enforceable. While the agency may supplement the FAR, it can’t vary the standard FAR rules without permission. This includes specially drafted contract requirements which conflict with  FAR 22.101-1, FAR 52.222-1, any other labor relations/National Labor Relations Act (“NLRA”) clauses, and the DBA and/or SCA clauses and wage determinations incorporated into the contract.

There is a formal process to follow if the agency wants to vary those rules. See FAR subpart 1.4—Deviations from the FAR. If contracting agency wants to vary the responsibilities set forth in the FAR, it has to first submit its proposed “deviant” clause to the FAR Council and obtain a formal individual or class FAR deviation.

Otherwise, clauses which purport to negate or vary the NLRA, DBA or SCA obligations are likely improper FAR deviations and are void and unenforceable. See, e.g., IBI Security Service, Inc., Comp Gen Dec. B-239569, 90-2 CPD 205 (striking down cap on SCA price adjustment; later revised when agency got a FAR class deviation). See also Service Employees Int’l Union, AFL-CIO v. GSA, 830 F. Supp. 5 (D.D.C. 1993) (holding same clause was illegal). The FAR regulatory scheme doesn’t reward unapproved deviance.