- Postal Service Mail Contracts With Owner-Operators

  1. The SCA does not apply to Postal Service contracts entered into with an individual owner-operator of vehicles for transporting mail where it is not contemplated at the time of contract award that such owner-operators will hire any service employee(s) to perform the services under the contract except for short (brief) periods of vacation time or for unexpected emergency situations such as illness or accident.
  2. The term "owner-operator" refers to an "individual." An "owner-operator" does not refer to a partnership, two closely related individuals (mom & pop operation), or a corporation. According to the specific language of this administrative exemption, the contract is exempt from SCA if the facts show that at the time of award, the individual awarded the contract intended to deliver the mail him or herself without using other drivers (except for the short periods permitted).
  3. This exemption would not be applicable in situations where, due to the numbers or timing of the required mail runs or other contracts for which the contractor may be responsible, it is not physically possible for the individual contractor to perform the contract services without using other drivers.

Note: Contracts for transportation are exempt from CWHSSA coverage under section 103(b) of CWHSSA. See 40 U.S.C. § 3701(3)(A)(i)(II). Accordingly, CWHSSA does not apply to drivers on Postal Service mail haul contracts.

Certain "Commercial" Services 29 C.F.R. § 4.123(e).

There are two administrative exemptions that apply to specific types of "commercial" services.

Equipment items exemption 29 C.F.R. § 4.123(e)(1).

  1. Where certain conditions are met (as described below), this exemption applies to contracts or subcontracts for the maintenance, calibration, and/or repair of:
    1. Automated data processing equipment and office information/word processing systems,
    2. Scientific equipment and medical apparatus or equipment where the application of microelectronic circuitry or other technology of at least similar sophistication is an essential element,
    3. Office/business machines not otherwise exempt, where the services are performed by the manufacturer or supplier.
  2. Contracts and subcontracts principally for the maintenance, calibration, and/or repair of such equipment are exempt from SCA requirements where:
    1. The equipment serviced are commercial items "sold or traded by the contractor (or subcontractor) in substantial quantities to the general public in the course of normal business operations" and used regularly for other than government purposes;
    2. The services are furnished based on the established market price or established catalog price charged the general public for such maintenance, calibration, and/or repair services; and
    3. The contractor uses the same compensation plan for all service employees performing under the government contract as the contractor uses for the same and equivalent employees servicing the same equipment of commercial customers.
    4. The contractor certifies as to the compliance with these provisions. The certification is included in the prime contract or subcontract, and the certification by the prime contractor as to its compliance with respect to the prime contract also constitutes its certification as to compliance by its subcontractor if it subcontracts out the exempt services.
  3. For this exemption to apply with regard to the prime contract, the contracting officer must determine applicability on or before contract award, considering all factors, and by making an affirmative determination that all four conditions described above have been met. Similarly, for the exemption to apply to a subcontract, the prime contractor must determine applicability of the exemption on or before subcontract award, based on all factors, and by making an affirmative determination that all of the four conditions have been met.

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