22.404-5 Expiration of project wage determinations
Source: FAR 22.404-5 on acquisition.gov
Contracting officers must ensure contracts are awarded with current wage determinations, amending solicitations and allowing bid or proposal revisions if wage rates change before award.
Overview
FAR 22.404-5 outlines the procedures contracting officers must follow when a project wage determination included in a solicitation is set to expire before contract award. The regulation distinguishes between sealed bidding and negotiated procurement, providing specific steps to ensure compliance with wage determination requirements under the Davis-Bacon Act. The primary goal is to ensure that contracts are awarded with current, valid wage determinations, and to address situations where wage determinations expire before award, including how to request extensions, amend solicitations, and handle changes in wage rates.
Key Rules
- Award Before Expiration
- Contracting officers must strive to award contracts before the included wage determination expires.
- Sealed Bidding Procedures
- If the wage determination may expire before bid opening, request a new one and, if needed, postpone bid opening and amend the solicitation. If it expires after bid opening but before award, request an extension or a new determination, and adjust the contract or solicitation as required.
- Negotiated Procurement Procedures
- If the wage determination will expire before award, request a new one and delay award if necessary. Offerors may need to extend proposal acceptance periods. Amend the solicitation and allow proposal revisions if wage rates change.
Responsibilities
- Contracting Officers: Must monitor wage determination expiration, request extensions or new determinations, amend solicitations, and ensure proper contract modifications.
- Contractors: Must be aware of potential changes to wage rates and be prepared to amend bids or proposals if required.
- Agencies: Oversee compliance and ensure timely processing of wage determinations and contract awards.
Practical Implications
- This section ensures that contracts reflect current wage rates, protecting both workers and the government from outdated wage data. Delays or failures to update wage determinations can result in solicitation amendments, bid/proposal revisions, and potential contract price adjustments. Contractors should monitor wage determination status closely to avoid compliance issues or unexpected cost changes.
(a) The contracting officer shall make every effort to ensure that contract award is made before expiration of the project wage determination included in the solicitation.
(b) The following procedure applies when contracting by sealed bidding:
(1) If a project wage determination for the primary site of the work expires before bid opening, or if it appears before bid opening that a project wage determination may expire before award, the contracting officer shall request a new determination early enough to ensure its receipt before bid opening. If necessary, the contracting officer shall postpone the bid opening date to allow a reasonable time to obtain the determination, amend the solicitation to incorporate the new determination, and permit bidders to amend their bids. If the new determination does not change the wage rates and would not warrant amended bids, the contracting officer shall amend the solicitation to include the number and date of the new determination.
(2) If a project wage determination for the primary site of the work expires after bid opening but before award, the contracting officer shall request an extension of the project wage determination expiration date from the Administrator, Wage and Hour Division. The request for extension shall be supported by a written finding, which shall include a brief statement of factual support, that the extension is necessary and proper in the public interest to prevent injustice or undue hardship or to avoid serious impairment of the conduct of Government business. If necessary, the contracting officer shall delay award to permit either receipt of the extension or receipt and processing of a new determination. If the request is granted, the contracting officer shall award the contract and modify it to apply the extended expiration date to the already incorporated project wage determination. (See 43.103(b)(1).) If the request is denied, the Administrator will proceed to issue a new project wage determination. Upon receipt, the contracting officer shall process the new determination as follows:
(i) If If the new determination for the primary site of the work changes any wage rates for classifications to be used in the contract, the contracting officer may cancel the solicitation only in accordance with 14.404-1. Otherwise the contracting officer shall award the contract and incorporate the new determination to be effective on the date of contract award. The contracting officer shall equitably adjust the contract price for any increased or decreased cost of performance resulting from any changed wage rates.
(ii) If the new determination for the primary site of the work does not change any wage rates, the contracting officer shall award the contract and modify it to include the number and date of the new determination. (See 43.103(b)(1).)
(c) The following procedure applies when contracting by negotiation:
(1) If a project wage determination will or does expire before contract award, the contracting officer shall request a new wage determination from the Department of Labor. If necessary, the contracting officer shall delay award while the new determination is obtained and processed.
(2) The contracting officer need not delay opening and reviewing proposals or discussing them with the offerors while a new determination for the primary site of the work is being obtained. The contracting officer shall request offerors to extend the period for acceptance of any proposal if that period expires or may expire before receipt and full processing of the new determination.
(3) If the new determination for the primary site of the work changes any wage rates, the contracting officer shall amend the solicitation to incorporate the new determination, and furnish the wage rate information to all prospective offerors that were sent a solicitation if the closing date for receipt of proposals has not yet occurred, or to all offerors that have not been eliminated from the competition if the closing date has passed. All offerors to whom wage rate information has been furnished shall be given reasonable opportunity to amend their proposals.
(4) If the new determination for the primary site of the work does not change any wage rates, the contracting officer shall amend the solicitation to include the number and date of the new determination and award the contract.