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Supplying Principles and Practices > USPS Supplying Practices General Practices > Laws
Laws
Congress afforded the Postal Service broad powers of operation in the
marketplace, excluding it from most Federal laws and regulations concerning
contracts, property, works, officers, employees, budgets, and funding; as well
as the establishment, adjudication, and judicial review of administrative
procedures and determinations. Most important, the Postal Service is not
subject to the Federal Acquisition Regulation (FAR), which is the primary
regulation governing all Federal executive agencies in their purchasing of
goods and services with appropriated funds. Please see Clauses &
Provisions for a complete list of clauses and provisions applicable to the
Postal Service.
There are a number of laws governing purchasing and material management
at the Postal Service. Some of those laws are mandated in Title 39 Code of
Federal Regulations (CFR) either as enacted or since amended, and others
are applied to the Postal Service by its own terms. Supply Management must
comply with those requirements in all activities.
Congress afforded the Postal Service broad powers of operation in the
marketplace, excluding it from most Federal laws and regulations concerning
contracts, property, works, officers, employees, budgets, and funding; as well
as the establishment, adjudication, and judicial review of administrative
procedures and determinations. Most important, the Postal Service is not
subject to the Federal Acquisition Regulation (FAR), which is the primary
regulation governing all Federal executive agencies in their purchasing of
goods and services with appropriated funds. Please see Clauses &
Provisions for a complete list of clauses and provisions applicable to the
Postal Service.
There are a number of laws governing purchasing and material management
at the Postal Service. Some of those laws are mandated in Title 39 Code of
Federal Regulations (CFR) either as enacted or since amended, and others
are applied to the Postal Service by its own terms. Supply Management must
comply with those requirements in all activities.
The followings laws are applicable to the Postal Service:
• Service Contract Act of 1965 (Public Law 89-286, 41 U.S.C. 351
et seq.)
• Davis-Bacon Act (40 U.S.C. 276(a) et seq.)
• The Copeland Anti-Kickback Act (18 U.S.C. 874 and 41 U.S.C.
276(c))
• Randolph-Sheppard Act (20 U.S.C. 107 et seq., made applicable
by 39 U.S.C. 410(b)(3))
• Miller Act (40 U.S.C. 270(a)-(f))
• Contract Work Hours and Safety Standards Act (40 U.S.C.
327-333)
• Prohibition on Convict Labor (under 39 U.S.C. 2201)
• Walsh-Healey Public Contracts Act (41 U.S.C. 35-45, made
applicable by 410(b)(5)(A))
• Freedom of Information Act (5 U.S.C. 552)
• Fair Labor Standards Act (29 U.S.C. 201-219)
• The Privacy Act of 1974 (5 U.S.C. 552(a))
• Architectural Barriers Act (42 U.S.C. 51, made applicable by 39
U.S.C. 410(b)(8))
• Administrative Dispute Resolution Act of 1996 (ADRA) (28 U.S.C.
1491(b))
• Rehabilitation Act of 1973 (29 U.S.C. 702 et seq.), including
Section 508
• The Javits-Wagner-O'Day Act (41 U.S.C. 46-48)
• Vietnam Era Veterans Readjustment Assistance Act of 1972 (38
U.S.C. 4212)
• Contract Disputes Act (41 U.S.C. 601 et seq.)
• Prompt Payment Act of 1974, as amended (31 U.S.C. 3901 et.
seq.)
Applicability
The Service Contract Act applies to any contract whose principal purpose is
to provide services to be performed by service employees.
Many types of services are covered by the Service Contract Act, which
attempts to cover contract workers who do not fall under the Davis-Bacon Act
for construction and the Walsh-Healey Public Contracts Act for supplies. Title
29 CFR 4, Subpart C, and CFR 4.101 provide examples of coverage. The
Service Contract Act does not cover executive, administrative, or professional
personnel. If services are only incidental to the performance of a contract, the
Service Contract Act does not apply.
The Service Contract Act also applies to subcontracts under covered
contracts, and Suppliers must include the Service Contract Act provisions in
subcontracts for services. Except where indicated, the terms "contract" and
"Supplier" include "subcontracts" and "subcontractors" in this part.
Exemptions
The following contracts are exempt from the Service Contract Act (subject to
the subsequent condition):
• Any contract for construction, alteration, or repair, including
painting and decorating.
• Any work covered by the Walsh-Healey Public Contracts Act.
• Any contract for transporting freight or personnel by ship, plane,
bus, truck, express, railway line, or oil or gas pipeline when
published tariff rates are in effect or rates are covered by
Section 10721 of the Interstate Commerce Act.
• Any service contract with a radio, telephone, telegraph, or cable
company subject to the Communications Act of 1934.
• Any contract for public utility services, including electric light and
power, water, steam, and gas.
• Any employment contract with individuals for direct services.
• Any contract that is principally for contract postal units.
• Contracts with common carriers for mail transportation by rail, air
(except air-taxi routes), bus, or ocean vessel on regularly
scheduled runs over established routes, when mail accounts for a
small portion of the revenue.
• Contracts for mail service with an individual owner/operator, when
it is not believed that the Supplier will hire service employees
under the contract except for short vacations or unexpected
contingencies or emergencies.
• Contracts principally for the maintenance, calibration, or repair of:
- Automated data processing equipment (including office
information and word processing equipment);
- Scientific and medical equipment involving sophisticated
technology; or Office or business machines not included
under contracts for construction, alteration, or repair,
including painting and decorating, when the services are
performed by the manufacturer or Supplier.
This last exemption applies only when the supplier certifies that:
• The ADPE or other equipment is commercially available, used
regularly outside the government, and normally sold or traded by
the supplier to the public in substantial quantities;
• Prices are established catalog or market prices; and
• Wages and fringe benefits paid under the contract are the same
as the supplier pays employees servicing the same equipment for
commercial customers.
Requirements
The Service Contract Act applies to any contract whose principal purpose is
to provide services to be performed by service employees.
Many types of services are covered by the Service Contract Act, which
attempts to cover contract workers who do not fall under the Davis-Bacon Act
for construction and the Walsh-Healey Public Contracts Act for supplies. Title
29 CFR 4, Subpart C, and CFR 4.101 provide examples of coverage. The
Service Contract Act does not cover executive, administrative, or professional
personnel. If services are only incidental to the performance of a contract, the
Service Contract Act does not apply.
The Service Contract Act also applies to subcontracts under covered
contracts, and Suppliers must include the Service Contract Act provisions in
subcontracts for services. Except where indicated, the terms "contract" and
"Supplier" include "subcontracts" and "subcontractors" in this part.
Clauses
• Contracts Over $2,500 - Clause 9-10: Service Contract Act
must be included in every contract for services covered by the
Service Contract Act that is over $2,500 or is modified to exceed
$2,500. This includes indefinite-delivery contracts and ordering
agreements when orders are expected to aggregate more than
$2,500. Clause 9-10: Service Contract Act is incorporated by
reference in Clause 4-2: Terms and Conditions Required to
Implement Policies, Statutes, or Executive Orders when checked
off by the Contracting Officer.
• Contracts of $2,500 or Less - Every contract of $2,500 or
less for services covered by the Service Contract Act must
include Clause 9-11: Service Contract Act - Short Form.
Clause 9-11: Service Contract Act - Short Form is incorporated
by reference in Clause 4-2: Terms and Conditions Required to
Implement Policies, Statutes, or Executive Orders when checked
off by the Contracting Officer.
• Multiyear Service Contracts and Service Contracts With
Renewal Options: Except for mail transportation contracts,
multiyear service contracts and service contracts with options to
renew that include Clause 9-10: Service Contract Act or Clause
9-11: Service Contract Act - Short Form must also include
Clause 9-12: Fair Labor Standards Act and Service Contract Act
- Price Adjustment. Clause 9-12: Fair Labor Standards Act and
Service Contract Act - Price Adjustment is incorporated by
reference in Clause 4-2: Terms and Conditions Required to
Implement Policies, Statutes, or Executive Orders when checked
off by the Contracting Officer.
Notice of Intent to Make a Service Contract
The Contracting Officer must file a notice of intent to make a service contract
with the Wage and Hour Division, Employment Standards Administration,
Department of Labor, for any contract over $2,500 covered by the Service
Contract Act. Standard Form 98, Notice of Intention to Make a Service
Contract must be used. The notice must be accompanied by Standard
Form 98, Notice of Intention to Make a Service Contract or a statement
indicating the numbers and classes of service employees expected to
perform the contract or a statement that the number will not exceed five (5).
Whenever possible, notice of intent must be filed at least 60 days (30 days
for unanticipated requirements) before a competitive solicitation is issued,
noncompetitive negotiations begin, an option is exercised, a contract is
extended, or the anniversary date of a multiyear contract. If it is not possible
to file a notice before the 30-day limit, it must be filed as soon as possible,
with an explanation of why it was not filed on time.
If the contract will be for substantially the same services as are being
furnished at the same location by an incumbent Supplier whose contract the
proposed contract will succeed and the wages and fringe benefits of the
service employees are determined by a collective bargaining agreement, the
agreement must be filed with the Standard Form 98, Notice of Intention to
Make a Service Contract, along with any related documents specifying wages
and fringe benefits that will apply to the contract. If the Contracting Officer
believes that the collective bargaining agreement was not the result of
"arm's-length" negotiations, a statement of the facts leading the Contracting
Officer to that conclusion must accompany the agreement, and the Office of
Special Wage Standards must be advised if the wages and fringe benefits
vary substantially from those for similar services.
Minimum Wage Determinations
If more than five (5) service employees will be involved in performing work
covered by the Service Contract Act, the contract may not be awarded
without a Department of Labor determination of applicable minimum wages
and fringe benefits, unless the determination will be incorporated in the
contract after award.
The required determination will normally be issued by the Wage and Hour
Division, Employment Standards Administration, in response to the notice of
intent filed under the Notice of Intent to Make a Service Contract, in sufficient
time to be included as an attachment to the solicitation.
If the place of performance is unknown when the solicitation is issued, a
wage determination need not be included in the original solicitation. Instead,
when proposals are received, a notice of intent must be filed in accordance
with Notice of Intent to Make a Service Contract, showing each location
where the contract might be performed, so that a wage determination may be
made for each. The wage determination that applies to the successful
potential Supplier must be included in the contract. If the Department of
Labor finds this impracticable, the Department may issue a composite wage
determination.
The Contracting Officer must contact the Wage and Hour Division to find out
whether a wage determination is still current when a solicitation or negotiation
has been delayed for more than 60 days from the anticipated date of award
stated on the Standard Form 98, Notice of Intention to Make a Service
Contract submitted. Any wage determination received in response must
replace the earlier wage determination.
When a Notice of Intent to Make a Services Contract has been filed, but the
wage determination has not been received in time for attachment to the
solicitation, the solicitation must state that the wage determination will be
issued as an amendment to the solicitation or incorporated into the contract
at the time of award.
Any revision of a wage determination received less than ten (10) days before
proposals are due is not effective unless there is enough time to notify
potential suppliers. If the contract action involves noncompetitive procedures,
exercise of an option, or extension of a contract, any revision of a wage
determination received after award is not effective if performance begins
within thirty (30) days after award; otherwise, any revision received at least
ten (10) days before performance begins is effective.
If circumstances require that a contract be awarded before a wage
determination is obtained, the contract must include Clause 9-10: Service
Contract Act and provide for equitable adjustment of the contract terms when
the wage determination is incorporated, effective from the date of issuance
unless another effective date is specified in the determination. The notice of
intent, if not already filed, must be filed promptly and explain the need for
immediate award.
The Wage and Hour Division may require that a wage determination be
applied to a contract retroactively, if the contract is subject to the Service
Contract Act and more than five (5) service employees are involved in
performing the work. If the Contracting Officer questions the applicability of
the Service Contract Act to the contract, the Contracting Officer must forward
the matter for resolution to assigned Legal Counsel. If it is determined that
the Service Contract Act is not applicable to the contract, the Contracting
Officer must advise the Department of Labor of the basis for this
determination. No further action is needed unless the Secretary of Labor
determines that the contract is subject to the Service Contract Act.
If a wage determination does not contain all the classifications and rates
requested in the notice of intent, those classifications for which no
determinations were received must be deleted from the attachment
incorporating the wage determination. When omitted classifications or
classifications not previously contemplated are found necessary after award,
they must be incorporated following the procedures in Clause 9-10: Service
Contract Act.
Award
The following requirements apply to contract awards under the Service
Contract Act:
• Notice of Award - Upon the award of a contract of $10,000 or
more that includes Clause 9-10: Service Contract Act (or upon
issuing the first order under an indefinite-delivery contract or
ordering agreement containing that clause), the Contracting
Officer must send an original and one copy of Standard Form 99,
Notice of Award of Contract to:
Attention: Office of Special Wage Standards
U.S. DEPARTMENT OF LABOR
WASHINGTON, DC 20210-0001
• Department of Labor Poster - At the time of award, the
Contracting Officer must supply the Supplier with WH
Publication 1313, a Department of Labor combination letter and
poster explaining the Service Contract Act.
• Inquiries Concerning the Service Contract Act - Suppliers or
their employees with questions about the applicability of the
Service Contract Act must be referred to:
DEPUTY ASSISTANT SECRETARY
EMPLOYMENT STANDARDS ADMINISTRATION
U.S. DEPARTMENT OF LABOR
WASHINGTON, DC 20210-0001
• Questions concerning safety or health must be referred to:
DIRECTOR, BUREAU OF LABOR STANDARDS
EMPLOYMENT STANDARDS ADMINISTRATION
U.S. DEPARTMENT OF LABOR
WASHINGTON, DC 20210-0001
General questions about the Service Contract Act may also be directed to
any regional office of the Employment Standards Administration of the
Department of Labor.
Withholding Contract Payments and Contract Termination
A violation of the stipulations of Clause 9-10: Service Contract Act or 9-11:
Service Contract Act - Short Form makes the responsible party liable for the
sum of any deductions, rebates, refunds, or underpayments due employees.
At the written request of a District Director (or above) of the Department of
Labor, as much of the accrued payment due on the contract (or any other
contract between the Supplier and the Postal Service that has not been
assigned) must be withheld as is necessary to pay the employees. Withheld
sums must be kept in an escrow fund. Any compensation that the Postal
Service or the Wage and Hour Division have found to be due must be paid
directly from the withheld payments.
If the withheld payments are insufficient to reimburse the underpaid
employees, this fact must be reported to the General Accounting Office (for
possible setoff), the Wage and Hour Division of the Department of Labor, and
the Department of Justice. The United States may bring an action to recover
the remaining amount. Any sums recovered must be held in the escrow fund
and paid, on order of the Secretary of Labor, directly to the underpaid
employees.
Any violation of Clause 9-10: Service Contract Act or Clause 9-11: Service
Contract Act - Short Form may be cause for termination of the Supplier's
right to continue the work. If the contract is terminated, the Postal Service
may enter into other contracts or arrangements to complete the work,
charging any additional costs to the terminated supplier.
The Comptroller General is responsible for sending a list of names of people
or firms in violation of the Service Contract Act to all government agencies.
Unless the Secretary of Labor recommends otherwise, Postal Service
contracts may not be awarded to any violator on the list (or to any firm,
corporation, partnership, or association in which such violator has a
substantial interest) for three years from the date the list was published.
Enforcement
The Secretary of Labor administers and enforces the Service Contract Act.
The Davis-Bacon Act requires that construction contracts over $2,000 contain
a provision setting the minimum wages to be paid to all classes of laborers
and mechanics working on the work site. Minimum wage rates are
determined by the Secretary of Labor on the basis of prevailing wage rates.
Further guidance concerning the Davis-Bacon Act is provided in
Handbook P2, Design and Construction Purchasing Practice.
The Copeland Anti-Kickback Act applies to any contract over $2,000 subject
to the Davis-Bacon Act. The Copeland Act makes it unlawful to force laborers
or mechanics to give up any part of their compensation except for permissible
deductions such as taxes and union dues.
This act allows for the operation of food service and vending facilities by the
blind on Federal properties to expand the economic opportunities of the blind,
and for other purposes. Postal facilities are to include space for vending
facilities operated by or on behalf of the blind.
Requirements
Blind suppliers licensed under the provisions of the Randolph-Sheppard Act
or by a state licensing agency must be given priority for the operation of food
vending services in Postal Service facilities. See Handbook AS-707H,
Contracting for Food Services and Handbook EL-602, Food Service
Operations for additional details.
Applicability
The Miller Act requires contract surety bonds on Federal construction.
Specifically, a contractor on a Federal project must post two bonds: a
performance bond and a labor and material payment bond. The surety
company issuing these bonds must be listed as a qualified surety on the
Treasury List http://www.fms.treas.gov/c570/c570.html, which the U.S.
Department of the Treasury issues each year.
The Miller Act payment bond covers subcontractors and Suppliers of material
who have direct contracts with the Prime Supplier. These are called first-tier
claimants. Subcontractors and material Suppliers who have contracts with a
subcontractor, but not those who have contracts with a Supplier, are also
covered and are called second-tier claimants. Anyone further down the
contract chain is considered too remote and cannot assert a claim against a
Miller Act payment bond posted by the contractor.
A subcontractor or Supplier who has a direct contract with the Prime Supplier
has no duty to provide any notice to the Prime Supplier before filing a suit on
the bond. When the claimant is a second-tier subcontractor or material
Supplier, however, formal notice must be given to the Prime Supplier within
90 days of the last date the claimant furnished labor or materials for the
project.
The final step in perfecting a claim on a payment bond is filling a lawsuit. For
both first-tier and second-tier claimants, suit must be filed no sooner than 90
days after the last labor and material were furnished and no later than one
year after that date. Full text of the Miller Act can be found on
http://www.sio.org/html/miller.html.
Requirements
The Miller Act provides that before a contract that exceeds $100,000 in
amount for the construction, alteration, or repair of any building or public work
of the United States is awarded to any person, that person shall furnish the
United States with the following:
• A performance bond in an amount that the Contracting Officer
regards as adequate for the protection of the United States. The
bond amount is normally 100 percent of the contract price.
• A separate payment bond for the protection of Suppliers of labor
and materials. The amount of the payment bond shall be equal to
the total amount payable by the terms of the contract unless the
Contracting Officer awarding the contract makes a written
determination supported by specific findings that a payment bond
in that amount is impractical, in which case the amount of the
payment bond shall be set by the Contracting Officer. In no case
shall the amount of the payment bond be less than the amount of
the performance bond.
Requirements
The Contract Work Hours and Safety Standards Act requires that certain
contracts contain a clause specifying that no laborer or mechanic doing any
work under the contract may be required or permitted to work more than
40 hours in any workweek unless paid at least one and one-half times the
basic rate of pay for all overtime hours. A violation makes the Supplier liable
for liquidated damages. Lease agreements, being subject to Reorganization
Plan No. 14 of 1950 under 39 U.S.C. 410(d), are subject to the safety
standards of the Contract Work Hours and Safety Standards Act, in addition
to the overtime pay requirements.
Exemptions
The Secretary of Labor is responsible for enforcement of the Work Hours and
Safety Standards Act and may permit variations and exemptions from the
Work Hours and Safety Standards Act's requirements when necessary in the
public interest or to prevent injustice or undue hardship (29 CFR 5.14).
Clauses
Clause 9-2: Contract Work Hours and Safety Standards Act - Overtime
Compensation is incorporated by reference in Clause 4-2: Terms and
Conditions Required to Implement Policies, Statutes, or Executive Orders
and must be checked off by Contracting Officers for all contracts, lease
agreements, and ordering agreements that may involve the employment of
laborers or mechanics, except:
• Construction contracts and lease agreements involving
alterations or improvements of $2,000 or less, and other contracts
and lease agreements of $2,500 or less;
• Indefinite delivery contracts and ordering agreements, if the total
amount of all orders placed for one (1) year after the effective
date will not exceed the above limits involving construction
contracts and lease agreements involving alterations or
improvements;
• Contracts for supplies usually purchased in the open market or
requiring labor merely incidental to the sale;
• Contracts for work subject solely to the Walsh-Healey Public
Contracts Act;
• Contracts for transportation by land, air, or water; and
• Any other contracts exempt under regulations of the Secretary of
Labor (see 29 CFR 5.15).
Requirements
Under 39 U.S.C. 2201, the Postal Service may not contract for supplies to be
manufactured by convict labor, except for purchase from Federal Prison
Industries, Inc. The Postal Service may purchase supplies from firms
employing persons on parole or probation under the conditions set forth in
Executive Order 11755, December 29, 1973, as amended, which the Postal
Service has elected to follow.
Clauses
Except for purchases from Federal Prison Industries, Inc., all contracts
involving the employment of labor must contain Clause 9-1: Convict Labor.
Clause 9-1: Convict Labor is incorporated by reference in Clause 4-2: Terms
and Conditions Required to Implement Policies, Statutes, or Executive
Orders.
Federal Prison Industries, Inc. (UNICOR)
The Postal Service uses Federal Prison Industries, Inc. (UNICOR) as a
source of supply for:
• Mailbag requirements exceeding the capacity of the Mail
Equipment Shops; and
• May obtain other products and services available from FPI.
Price and delivery terms must be reasonable compared with those available
in the commercial marketplace (as determined by market research or other
means not involving obtaining competitive proposals).
Ordering
Supplies and services available from FPI are listed in its Schedule of
Products brochure. This brochure and individual product and service catalogs
(which provide detailed ordering instructions) are available at FPI's website
(www.unicor.gov) and are available from:
UNICOR CORPORATE DIVISION
FEDERAL PRISON INDUSTRIES, INC.
320 FIRST STREET, N.W.
WASHINGTON, DC 20534-0001
Applicability
The Walsh-Healey Public Contracts Act applies to indefinite-delivery
contracts and ordering agreements if the aggregate amount of all orders is
expected to exceed $10,000 during the year following award. Indefinite
delivery contracts and ordering agreements not initially subject to the
Walsh-Healey Public Contracts Act become subject to the Walsh-Healey
Public Contracts Act if orders will exceed $10,000 during any year after the
first year. Applicability must therefore be determined annually until the
contracts or agreements become subject to the Act.
If a contract for $10,000 or less is modified to exceed $10,000, the
Walsh-Healey Public Contracts Act applies. If a contract that exceeds
$10,000 is modified to $10,000 or less, the work performed after the
modification is subject to the Walsh-Healey Public Contracts Act if both
parties agreed to the modification.
Exemptions
The following purchases are exempt from the Walsh-Healey Public Contracts
Act:
• Noncompetitive purchases, when delaying the purchase would
seriously harm the Postal Service.
• Perishables, including dairy, livestock, and nursery products.
• Purchases of agricultural or farm products processed for first sale
by the original producers.
• Commercially available items.
When a contract subject to the Walsh-Healey Public Contracts Act is
awarded, the Contracting Officer, under the regulations or instructions issued
by the Secretary of Labor, must:
• Give the Supplier a Department of Labor combination letter and
poster (WH Publication 1313) explaining the Walsh-Healey Public
Contracts Act; and
• Report any violation of the representations or stipulations
required by the Walsh-Healey Public Contracts Act to the
Secretary of Labor through the Inspection Service.
The Secretary of Labor may allow exceptions to the requirement that the
representations and stipulations of the Walsh-Healey Public Contracts Act be
included in contracts. The Contracting Officer must submit requests for
exceptions to the Administrator, Wage and Hour Division, Department of
Labor, through the Manager, Supply Management Infrastructure.
Requirements
The Walsh-Healey Public Contracts Act requires that certain contracts for the
manufacture or furnishing of supplies must incorporate the Walsh-Healey
Public Contracts Act requirements by reference. No Contracting Officer,
Supplier, or subcontractor may purchase quantities amounting to less than
$10,000 to avoid compliance with the Walsh-Healey Public Contracts Act.
Clauses
All contracts subject to the Walsh-Healey Public Contracts Act must include
Clause 9-6: Walsh-Healey Public Contracts Act, which is incorporated by
reference in Clause 4-2: Terms and Conditions Required to Implement
Policies, Statutes, or Executive Orders, and must be checked off by the
Contracting Officer, as appropriate.
The Freedom of Information Act (FOIA) provides the public with a right of
access to records (hard-copy and electronic) that are maintained by Federal
agencies, including the Postal Service. The FOIA contains exemptions that
authorize the withholding of certain information. Postal Service regulations
implementing the FOIA are located in 39 CFR 265. For procedures that
implement FOIA, consult Handbook AS-353, Guide to Privacy and the
Freedom of Information Act. For Postal Service Supplying Practices
pertaining to FOIA, refer to the Respond to External Communication
Requirements topic of the Make Final Decisions task of Process Step 3:
Select Suppliers. For additional information, visit www.usps.com/foia.
The Fair Labor Standards Act provides for minimum wages and maximum
work hours, and it appoints the Wage and Hour Division of the Department of
Labor to interpret and enforce the Fair Labor Standards Act (including
investigating and inspecting general suppliers). The Fair Labor Standards Act
applies to all employees (with some exceptions) engaged in interstate or
foreign commerce, the production of supplies for such commerce, or any
closely related process or occupation essential to such production. It also
prohibits oppressive child labor.
Suppliers or their employees who inquire concerning the applicability or
interpretation of the Fair Labor Standards Act must be advised that rulings fall
under the jurisdiction of the Department of Labor and must be referred to the
Regional Administrator, Wage and Hour Division, Department of Labor.
The Privacy Act provides privacy protections for personal information
maintained by Federal agencies. The Privacy Act provides privacy
protections for personal information that agencies maintain in a "system of
records," which includes files, databases, or programs from which personal
information is retrieved by name or other identifier. Postal Service regulations
regarding the Privacy Act are located in 39 CFR 266 and 39 CFR 268.
Handbook AS-353, Guide to Privacy and the Freedom of Information Act
describes procedures relating to the Privacy Act, a full description of Privacy
Act protections, as well as the Postal Service systems of records.
Requirements
When an agency maintains a system of records, it must publish a notice that
describes the system in the Federal Register. The notice must document how
the agency manages personal information within the system. This includes
how information is collected, used, disclosed, stored, and discarded. It also
includes how individuals can exercise their rights to obtain access to and
amend their personal information that is maintained in the system. The
Privacy Act further requires that the Postal Service provide an appropriate
privacy notice to individuals when they are asked to provide information
about themselves.
Penalties
The Privacy Act provides criminal penalties, in the form of fines, for any
officer or employee who:
• Willfully maintains a system of records that contains information
about an individual without giving appropriate notice in the
Federal Register; or
• Knowing that disclosure is prohibited, willfully discloses
information about an individual in any manner to any person or
agency not entitled to receive it.
The Privacy Act also provides criminal penalties, in the form of fines, for any
person who knowingly and willfully requests or obtains under false pretenses
any record about another individual.
The Architectural Barriers Act requires that Postal Service buildings (both
owned and leased) are accessible to the physically handicapped. Like
Section 508 of the Rehabilitation Act of 1973, the Architectural Barriers Act
impacts the cost of constructing or leasing buildings. Accessibility
requirements of the Americans with Disabilities Act, applicable to private
structures, have less stringent standards and put the burden on lessor, as
opposed to the lessee. Full text of the Architectural Barriers Act can be found
on http://www.access-board.gov/about/ABA.htm.
The Administrative Dispute Resolution Act (ADRA) constitutes a mandate to
all Federal agencies to provide Alternative Dispute Resolution (ADR)
services. It requires the Postal Service to have policies that address the use
of ADR techniques and to appoint a Dispute Resolution Specialist. For Postal
Service practices concerning ADR, consult the Discussions and Negotiations
topic of the Perform Award Activities task of Process Step 2: Evaluate
Sources, as well as the Supplier Disagreement Resolution topic of the
Manage the Supplier Relationship task of Process Step 5: Measure and
Manage Supply.
Applicability
ADRA requires the Postal Service to examine the use of ADR in connection
with:
• Formal and informal adjudications
• Rulemakings
• Enforcement actions
• Issuing and revoking licenses or permits
• Contract administration
• Litigation brought by or against the Postal Service
• Other Postal Service actions
Requirements
For the purpose of the statute, alternative means of dispute resolution include
conciliation, mediation, facilitation, fact finding, minitrials, and the use of an
ombudsman.
ADRA:
• Provides that the Postal Service, once having agreed to binding
arbitration, may not vacate or "opt out" of arbitral decisions with
which it does not agree
• Exempts certain confidential communications between a party to
a dispute and a neutral party, which were made during ADR
proceedings, from disclosure under the Freedom of Information
Act (FOIA)
The Rehabilitation Act of 1973 requires Suppliers to take affirmative action to
employ and advance qualified individuals without discrimination as to their
physical or mental handicaps.
Applicability
With the exceptions outlined below, every contract for supplies or services
(including construction and transportation services) over $2,500 must include
Clause 9-13: Affirmative Action for Handicapped Workers, which is
incorporated by reference in Clause 4-2: Terms and Conditions Required to
Implement Policies, Statutes, or Executive Orders, and must be checked off
by the Contracting Officer when applicable.
Requirements
The Postal Service complies with the Rehabilitation Act of 1973, Executive
Order 11758 of January 15, 1974, and the implementing regulations of the
Secretary of Labor (41 CFR 60-741). The requirements of Clause 9-13:
Affirmative Action for Handicapped Workers does not apply to any agency,
instrumentality, or subdivision of the state or local government that does not
participate in work under the contract.
Exemptions
The Vice President, Supply Management (VP, SM), may exempt any Supplier
or subcontractor (or any group or category of Supplier or subcontractor) from
any provisions of Clause 9-13: Affirmative Action for Handicapped Workers
in the Postal Service's interest. The Contracting Officer must submit a
justification for any proposed exemption to the VP, SM.
Section 508
Section 508 of the Rehabilitation Act is a law that requires Federal agencies,
including the Postal Service, to procure electronic and information technology
(EIT) that is accessible to persons with disabilities. The law requires that EIT
equipment and systems procured on or after June 21, 2001, comply with
standards written by the Architectural and Transportation Barriers
Compliance Board (Access Board). These standards were published
December 21, 2000, in the Federal Register. EIT includes technology such as
web pages, software applications, computers, self-contained kiosks, copiers,
multimedia, and telecommunications systems. These standards are intended
to make these technology products more accessible to individuals with
disabilities.
Department of Labor Notices
Under Clause 9-13: Affirmative Action for Handicapped Workers, the
Contracting Officer must provide the Supplier with Department of Labor
notices that state the Supplier's obligations and handicapped individuals'
rights under the Employment of the Handicapped program. These notices
may be obtained from:
OFFICE OF INFORMATION
EMPLOYMENT STANDARDS ADMINISTRATION
U.S. DEPARTMENT OF LABOR
WASHINGTON, DC 20210-0001
Collective Bargaining Agreements
When performance under Clause 9-13: Affirmative Action for Handicapped
Workers requires revision of a collective bargaining agreement, the unions
that are parties to such agreements must be advised that the Department of
Labor will give them appropriate opportunity to express their views. Neither
the Contracting Officer nor any representative of the Contracting Officer may
discuss with representatives of the Supplier or of the unions any aspects of
the collective bargaining agreements.
Complaints
The Contracting Officer must forward any complaint concerning the
Rehabilitation Act through channels to the VP, SM. No investigation or
attempt to resolve the complaint may be made without specific instructions
from the VP, SM.
Department of Labor Sanctions
When Supply Management Infrastructure is notified that the Department of
Labor has imposed sanctions on a Supplier (such as withholding progress
payments, terminating or suspending the contract, or debarring the Supplier)
for violation of Clause 9-13: Affirmative Action for Handicapped Workers, the
Contracting Officer must put the sanctions into effect as soon as possible.
The Javits-Wagner-O'Day Act requires that the Postal Service and other
Federal agencies purchase certain supplies and services from qualified
workshops that employ people who are blind or severely disabled. The
Committee for Purchase from People Who Are Blind or Severely Disabled
determines which supplies and services must be purchased and their price.
Additional information on the applicability of the Javits-Wagner-O'Day Act can
be found in the Purchase From Mandatory Sources topic of the Develop
Sourcing Strategy Task in Process Step 2: Evaluate Sources.
Applicability
Except as provided in submitted reports, every contract for supplies or
services (including utility, construction, and transportation services) or for the
use of real or personal property (including lease arrangements) in the amount
of $25,000 or more must include Clause 9-14: Affirmative Action for Disabled
Veterans and Veterans of the Vietnam Era, which is included in Clause 4-2:
Terms and Conditions Required to Implement Policies, Statutes, or Executive
Orders, and must be checked off by the Contracting Officer as applicable. No
Contracting Officer, Supplier, or subcontractor may purchase quantities of
supplies or services in less-than-normal quantities to avoid application of
Clause 9-14: Affirmative Action for Disabled Veterans and Veterans of the
Vietnam Era.
Requirements
The Vietnam Era Veterans Readjustment Assistance Act of 1972, Executive
Order 11701 of January 23, 1973, the Veterans Employment Opportunities
Act of 1999, and the implementing regulations of the Secretary of Labor (41
CFR 60-250) require Suppliers to take affirmative action to employ, and
advance in employment, qualified special disabled veterans, veterans of the
Vietnam era, and other eligible veterans without discrimination based on their
disability or veterans' status, and to list all employment openings with
appropriate local employment services.
Contracts may not be awarded to suppliers that have not submitted an
annual Form VETS-100, Federal Contractor Veterans' Employment Report.
To determine whether a report has been submitted, Contracting Officers
must:
• Query the Department of Labor's VETS-100 Database via the
Internet at www.vets100.cudenver.edu/vets100search.htm, using
the validation code "vets" to proceed with the search in the
database; or
• Contact the VETS-100 reporting system via e-mail at
verify@vets100.com for confirmation, if the supplier represents
that it has submitted the VETS-100 Report and is not listed in the
database.
Request for Exemptions
The Contracting Officer must submit a detailed justification for any proposed
exemption to the VP, SM for submission through channels to the Postmaster
General and the Director, Office of Federal Contract Compliance Programs
(OFCCP).
Department of Labor Notices
The Contracting Officer must furnish the Supplier appropriate notices for
posting when such notices are prescribed by the Director, OFCCP at the
Department of Labor's Employment Standards Administration.
Complaints
The Contracting Officer must forward any complaint concerning the Vietnam
Era Veterans Readjustment Assistance Act of 1972 through channels to the
VP, SM. No investigation or attempt to resolve the complaint may be made
without specific instructions from the VP, SM.
Department of Labor Sanctions
When Supply Management Infrastructure is notified that the Department of
Labor has imposed sanctions on a Supplier (such as withholding progress
payments, terminating or suspending the contract, or debarring the Supplier)
for violation of Clause 9-14: Affirmative Action for Disabled Veterans and
Veterans of the Vietnam Era, the Contracting Officer must put the sanctions
into effect as soon as possible.
Requirements
The Contract Disputes Act (CDA) creates a comprehensive system for
resolving disputes between a Supplier and Supply Management at the Postal
Service relating to the performance of most purchase contracts. The trigger
point for this system is the Contracting Officer's decision. The claims of both
the Supplier and the Postal Service must be the subject of a Contracting
Officer's decision. The Supplier may appeal such a decision to the
appropriate agency board of contract appeals; such boards are specifically
authorized by the Contract Disputes Act. Alternatively, the Supplier, in lieu of
appealing a Contracting Officer's decision to a board of contract appeals,
may file suit on its claim in the United States Court of Federal Claims (CFC).
In both forums, the claim is heard de novo. If the Supplier or the Postal
Service (with the approval of the Attorney General) wishes, either may appeal
a decision of a board of contract appeals or the CFC to the United States
Court of Appeals for the Federal Circuit (CAFC). Additional information
regarding the CDA procedures can be found in sections 601.109 through
601.112 of Title 39 Code of Federal Regulations (CFR), and regulations
governing proceedings under the CDA before the Postal Service Board of
Contract Appeals can be found at Part 955 of Title 39, CFR.
Applicability
The CDA applies to nearly all contracts with the Postal Service, express or
implied, executed on or after March 1, 1979, for:
• The purchase of goods, other than real property;
• The purchase of services;
• The purchase of construction, alteration, repair, or maintenance
of real property; or
• The disposal of personal property.
The Postal Service will pay interest on late payments and unearned prompt
payment discounts in accordance with the Prompt Payment Act, 31 U.S.C.
3901 et. seq., as amended by the Prompt Payment Act Amendments of
1988, P.L. 100-496, in accordance with Clause 4-1: General Terms and
Conditions, paragraph i, or Clause B-22: Interest.
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