(a) Use of ``service employees'' in a contract performance. (1) As
indicated in Sec. 4.110, the Act covers service contracts only where
``service employees'' will be used in performing the services which it
is the purpose of the contract to procure. A contract principally for
services ordinarily will meet this condition if any of the services will
be furnished through the use of any service employee or employees. Where
it is contemplated that the services (of the kind performed by service
employees) will be performed individually by the contractor, and the
contracting officer knows when advertising for bids or concluding
negotiations that service employees will in no event be used by the
contractor in providing the contract services, the Act will not be
deemed applicable to the contract and the contract clauses required by
Sec. 4.6 or Sec. 4.7 may be omitted. The fact that the required services
will be performed by municipal employees or employees of a State would
not remove the contract from the purview of the Act, as this Act does
not contain any exemption for contracts performed by such employees.
Also, as discussed in paragraph (a)(3) of this section, where the
services the Government wants under the contract are of a type that will
require the use of service employees as defined in section 8(b) of the
Act, the contract is not taken out of the purview of the Act by the fact
that the manner in which the services of such employees are performed
will be subject to the continuing overall supervision of bona fide
executive, administrative, or professional personnel to whom the Act
does not apply.
(2) The coverage of the Act does not extend to contracts for
services to be performed exclusively by persons who are not service
employees, i.e., persons who are bona fide executive, administrative or
professional personnel as defined in part 541 of this title (see
paragraph (b) of this section). A contract for medical services
furnished by professional personnel is an example of such a contract.
(3) In addition, the Department does not require application of the
Act to any contract for services which is performed essentially by bona
fide executive, administrative, or professional employees, with the use
of service employees being only a minor factor in the performance of the
contract. However, the Act would apply to a contract for services which
may involve the use of service employees to a significant or substantial
extent even though there is some use of bona fide executive,
administrative, or professional employees in the performance of the
contract. For example, contracts for drafting or data processing
services are often performed by drafters, computer operators, or other
service employees and are subject to the Act even though the work of
such employees may be performed under the direction and supervision of
bona fide professional employees.
(4) In close cases involving a decision as to whether a contract
will involve a significant use of service employees, the Department of
Labor should be consulted, since such situations require consideration
of other factors such as the nature of the contract work, the type of
work performed by service employees, how necessary the work is to
contract performance, the amount of contract work performed by service
employees vis-a-vis professional employees, and the total number of
service employees employed on the contract.
(b) ``Service employees'' defined. In determining whether or not any
of the contract services will be performed by service employees, the
definition of service employee in section 8(b) of the Act is
controlling. It provides:
The term service employee means any person engaged in the
performance of a contract entered into by the United States and not
exempted under section 7, whether negotiated or advertised, the
principal purpose of which is to furnish services in the United States
(other than any person employed in a bona fide executive,
administrative, or professional capacity, as those terms are defined in
part 541 of title 29, Code of Federal Regulations, as of July 30, 1976,
and any subsequent revision of those regulations); and shall include all
such persons regardless of any contractual relationship that may be
alleged to exist between a contractor or subcontractor and such persons.
It will be noted that the definition expressly excludes those employees
who are employed in a bona fide executive, administrative, or
professional capacity as defined in part 541 of this title and as
discussed further in Sec. 4.156. Some of the specific types of service
employees who may be employed on service contracts are noted in other
sections which discuss the application of the Act to employees.
[48 FR 49762, Oct. 27, 1983; 48 FR 50529, Nov. 2, 1983]
