FAR 22.404-4—Solicitations issued without wage determinations for the primary site of the work.
Plain-English Summary
FAR 22.404-4 addresses what happens when a solicitation is issued before the wage determination for the primary site of the work has been obtained. It covers three related topics: the required solicitation notice, the timing rules for sealed bidding, and the timing rules for negotiated acquisitions. The section exists to ensure that contractors receive the applicable minimum wage rates under the Davis-Bacon Act or related labor standards before they are bound to final pricing, while still allowing the acquisition to move forward when the wage determination is not yet available. In practice, it prevents award based on incomplete labor-cost information and reduces the risk of bid/proposal defects, protests, or post-award pricing disputes. It also distinguishes between sealed bidding, where bid opening must be delayed until bidders have had a reasonable time to adjust to the wage determination, and negotiated acquisitions, where discussions may proceed but best and final offers cannot be requested until the wage determination is incorporated. For contracting officers, this section is a timing and notice control requirement; for contractors, it is a warning that labor rates may change before final submission and should be monitored closely.
Key Rules
Include solicitation notice
If the solicitation is issued before the primary-site wage determination is available, the solicitation must tell offerors that the minimum wage schedule will be issued later as an amendment. This puts bidders and offerors on notice that labor rates are not yet final and may change before pricing is due.
Delay sealed bid opening
In sealed bidding, bids cannot be opened until a reasonable time after the wage determination has been furnished to all bidders. This protects competition by giving every bidder a fair chance to incorporate the same wage information into its bid.
Allow negotiations to proceed
In negotiated acquisitions, the contracting officer may open proposals and conduct negotiations before the wage determination is obtained. The acquisition can continue, but final pricing cannot be locked in until the labor rates are properly incorporated.
Incorporate before BAFOs
Before best and final offers are submitted, the contracting officer must incorporate the wage determination into the solicitation. This ensures final offers are based on the correct wage requirements and prevents offerors from submitting final prices without knowing the applicable labor costs.
Responsibilities
Contracting Officer
Include the required notice in the solicitation if the wage determination is not yet available; in sealed bidding, delay bid opening until a reasonable time after furnishing the wage determination to all bidders; in negotiated acquisitions, continue the process if appropriate but ensure the wage determination is incorporated before best and final offers are requested or submitted.
Bidders/Offerors
Monitor solicitation amendments for the wage determination; revise pricing to reflect the applicable minimum wage rates once issued; in sealed bidding, ensure bids are prepared after receiving the wage determination and within the time allowed; in negotiated acquisitions, adjust proposals and final offers to account for the incorporated wage determination.
Agency
Obtain and provide the applicable wage determination for the primary site of the work in time to support fair competition and compliant award; support timely amendment of the solicitation when the wage determination becomes available.
Practical Implications
A solicitation can go out before the wage determination is ready, but it cannot stay silent about that fact; the notice requirement is essential.
For sealed bids, opening too soon is a compliance error because bidders may not have had a fair opportunity to price the labor requirements.
For negotiated procurements, the process may move forward, but the wage determination must be in the solicitation before BAFOs, or final pricing may be invalid.
Contractors should watch amendments closely because the wage determination can materially affect labor costs and overall price.
Contracting officers should build in enough time for amendment and bidder/offeror response to avoid protests, schedule slips, or the need to cancel and resolicit.
Official Regulatory Text
(a) If a solicitation is issued before the wage determination for the primary site of the work is obtained, a notice shall be included in the solicitation that the schedule of minimum wage rates to be paid under the contract will be issued as an amendment to the solicitation. (b) In sealed bidding, bids may not be opened until a reasonable time after the wage determination for the primary site of the work has been furnished to all bidders. (c) In negotiated acquisitions, the contracting officer may open proposals and conduct negotiations before obtaining the wage determination for the primary site of the work. However, the contracting officer shall incorporate the wage determination for the primary site of the work into the solicitation before submission of best and final offers.