(a) The purpose of this subpart is to provide, pursuant to the
authority cited in Sec. 4.102, official rulings and interpretations with
respect to the application of the McNamara-O'Hara Service Contract Act
for the guidance of the agencies of the United States and the District
of Columbia which may enter into and administer contracts subject to its
provisions, the persons desiring to enter into such contracts with these
agencies, and the contractors, subcontractors, and employees who perform
work under such contracts.
(b) These rulings and interpretations are intended to indicate the
construction of the law and regulations which the Department of Labor
believes to be correct and which will be followed in the administration
of the Act unless
and until directed otherwise by Act of Congress or by authoritative
ruling of the courts, or if it is concluded upon reexamination of an
interpretation that it is incorrect. See for example, Skidmore v. Swift
& Co., 323 U.S. 134 (1944); Roland Co. v. Walling, 326 U.S. 657 (1946);
Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 507-509 (1943); Perkins
v. Lukens Steel Co., 310 U.S. 113, 128 (1940); United States v. Western
Pacific Railroad Co., 352 U.S. 59 (1956). The Department of Labor (and
not the contracting agencies) has the primary and final authority and
responsibility for administering and interpreting the Act, including
making determinations of coverage. See Woodside Village v. Secretary of
Labor, 611 F. 2d 312 (9th Cir. 1980); Nello L. Teer Co. v. United
States, 348 F.2d 533, 539-540 (Ct. Cl. 1965), cert. denied, 383 U.S.
934; North Georgia Building & Construction Trades Council v. U.S.
Department of Transportation, 399 F. Supp. 58, 63 (N.D. Ga. 1975)
(Davis-Bacon Act); Curtiss-Wright Corp. v. McLucas, 364 F. Supp. 750,
769-72 (D.N.J. 1973); and 43 Atty. Gen. Ops. ---- (March 9, 1979); 53
Comp. Gen. 647, 649-51 (1974); 57 Comp. Gen. 501, 506 (1978).
(c) Court decisions arising under the Act (as well as under related
remedial labor standards laws such as the Walsh-Healey Public Contracts
Act, the Davis-Bacon Act, the Contract Work Hours and Safety Standards
Act, and the Fair Labor Standards Act) which support policies and
interpretations contained in this part are cited where it is believed
that they may be helpful. On matters which have not been authoritatively
determined by the courts, it is necessary for the Secretary of Labor and
the Administrator to reach conclusions as to the meaning and the
application of provisions of the law in order to carry out their
responsibilities of administration and enforcement (Skidmore v. Swift &
Co., 323 U.S. 134 (1944)). In order that these positions may be made
known to persons who may be affected by them, official interpretations
and rulings are issued by the Administrator with the advice of the
Solicitor of Labor, as authorized by the Secretary (Secretary's Order
No. 16-75, Nov. 21, 1975, 40 FR 55913; Employment Standards Order No. 2-
76, Feb. 23, 1976, 41 FR 9016). These interpretations are a proper
exercise of the Secretary's authority. Idaho Sheet Metal Works v. Wirtz,
383 U.S. 190, 208 (1966), reh. den. 383 U.S. 963 (1966). References to
pertinent legislative history, decisions of the Comptroller General and
of the Attorney General, and Administrative Law Judges' decisions are
also made in this part where it appears they will contribute to a better
understanding of the stated interpretations and policies.
(d) The interpretations of the law contained in this part are
official interpretations which may be relied upon. The Supreme Court has
recognized that such interpretations of the Act ``provide a practical
guide to employers and employees as to how the office representing the
public interest in its enforcement will seek to apply it'' and
``constitute a body of experience and informed judgment to which courts
and litigants may properly resort for guidance'' (Skidmore v. Swift &
Co., 323 U.S. 134 (1944)). Interpretations of the agency charged with
administering an Act are generally afforded deference by the courts.
(Griggs v. Duke Power Co., 401 U.S. 424, 433-34 (1971); Udall v.
Tallman, 380 U.S. 1 (1965).) Some of the interpretations in this part
relating to the application of the Act are interpretations of provisions
which appeared in the original Act before its amendments in 1972 and
1976. Accordingly, the Department of Labor considers these
interpretations to be correct, since there were no amendments of the
statutory provisions which they interpret. (United States v. Davison
Fuel & Dock Co., 371 F.2d 705, 711-12 (C.A. 4, 1967).)
(e) The interpretations contained herein shall be in effect until
they are modified, rescinded, or withdrawn. This part supersedes and
replaces certain interpretations previously published in the Federal
Register and Code of Federal Regulations as part 4 of this chapter.
Prior opinions, rulings, and interpretations and prior enforcement
policies which are not inconsistent with the interpretations in this
part or with the Act as amended are continued in effect; all other
opinions, rulings, interpretations, and enforcement policies on the
subjects discussed in the interpretations in this part, to the extent
they are inconsistent with the rules herein stated, are superseded,
rescinded, and withdrawn.
(f) Principles governing the application of the Act as set forth in
this subpart are clarified or amplified in particular instances by
illustrations and examples based on specific fact situations. Since such
illustrations and examples cannot and are not intended to be exhaustive,
or to provide guidance on every problem which may arise under the Act,
no inference should be drawn from the fact that a subject or
illustration is omitted.
(g) It should not be assumed that the lack of discussion of a
particular subject in this subpart indicates the adoption of any
particular position by the Department of Labor with respect to such
matter or to constitute an interpretation, practice, or enforcement
policy. If doubt arises or a question exists, inquiries with respect to
matters other than safety and health standards should be directed to the
Administrator of the Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, Washington, DC 20210, or to
any regional office of the Wage and Hour Division. Safety and health
inquiries should be addressed to the Assistant Secretary for
Occupational Safety and Health, U.S. Department of Labor, Washington, DC
20210, or to any OSHA regional office. A full description of the facts
and any relevant documents should be submitted if an official ruling is
desired.
