FAR 22.404-5—Expiration of project wage determinations.
Plain-English Summary
FAR 22.404-5 explains what a contracting officer must do when a project wage determination is about to expire or has expired before award. It covers both sealed bidding and negotiated acquisitions, and it distinguishes between situations where the expiration occurs before bid opening or proposal closing, and situations where it occurs after bid opening or proposal closing but before award. The section also addresses when the contracting officer must request a new wage determination from the Department of Labor, when an extension of the existing determination may be requested from the Wage and Hour Division Administrator, and when the solicitation must be amended. It further covers the need to postpone bid opening or delay award, the requirement to allow bidders or offerors a reasonable chance to revise bids or proposals when wage rates change, and the limited circumstances in which a solicitation may be canceled. In practice, this rule protects fair competition and ensures that the contract incorporates the correct prevailing wage requirements at the time of award, while also preventing unnecessary delays or disruptions to the procurement.
Key Rules
Award before expiration
The contracting officer must make every effort to award the contract before the project wage determination in the solicitation expires. This is the baseline rule and drives the timing decisions in both sealed bidding and negotiated procurements.
Sealed bidding: pre-bid expiration
If the project wage determination for the primary site expires before bid opening, or appears likely to expire before award, the contracting officer must request a new determination early enough to receive it before bid opening. If needed, the bid opening must be postponed and the solicitation amended so bidders can revise bids; if the new determination does not change wage rates, the solicitation is amended only to show the new number and date.
Sealed bidding: post-bid, pre-award expiration
If expiration occurs after bid opening but before award, the contracting officer must request an extension from the Wage and Hour Division Administrator, supported by a written finding showing public-interest necessity, injustice or undue hardship, or serious impairment to Government business. If the extension is granted, award may proceed and the contract is modified to reflect the extended expiration date.
Sealed bidding: denied extension
If the extension request is denied, the Administrator will issue a new project wage determination. If the new determination changes wage rates for classifications used in the contract, the contracting officer may cancel the solicitation only under FAR 14.404-1; otherwise, the contract is awarded and the new determination is incorporated effective on the date of award, with an equitable adjustment for any resulting cost change.
Negotiated procurement: request new determination
In negotiated acquisitions, if the project wage determination will or does expire before award, the contracting officer must request a new determination from the Department of Labor and may delay award while it is obtained and processed. Unlike sealed bidding, the contracting officer does not have to stop proposal opening, review, or discussions while waiting.
Negotiated procurement: extend proposal acceptance
If the proposal acceptance period expires or may expire before the new determination is received and processed, the contracting officer must ask offerors to extend their acceptance periods. This preserves the Government’s ability to award after the correct wage determination is in place.
Negotiated procurement: changed wage rates
If the new determination changes wage rates, the contracting officer must amend the solicitation and provide the wage information to all prospective offerors who received the solicitation before the closing date, or to all offerors still in the competition after the closing date. Those offerors must be given a reasonable chance to revise their proposals.
Negotiated procurement: no wage change
If the new determination does not change wage rates, the contracting officer simply amends the solicitation to show the new number and date and then awards the contract.
Responsibilities
Contracting Officer
Monitor the expiration date of the project wage determination, take action early enough to avoid award with an expired determination, request new determinations or extensions as required, amend the solicitation when necessary, delay bid opening or award when needed, and ensure bidders or offerors receive a fair chance to revise their submissions when wage rates change.
Administrator, Wage and Hour Division
Consider and act on requests to extend the expiration date of a project wage determination after bid opening but before award in sealed bidding. If the extension is denied, issue a new project wage determination.
Bidders
In sealed bidding, respond to postponed bid openings and solicitation amendments as needed, and amend bids when the new wage determination changes the basis for pricing.
Offerors
In negotiated procurements, extend proposal acceptance periods when requested if the original period may expire before the new wage determination is fully processed, and revise proposals when amended wage information changes pricing or other proposal terms.
Agency/Procuring Activity
Support timely procurement planning so wage determinations are current at award, and avoid unnecessary delays that could force bid postponements, award delays, or solicitation cancellation.
Practical Implications
This section is mainly about timing discipline: contracting officers must track wage determination expiration dates closely or risk having to postpone bid opening, delay award, or re-solicit.
For sealed bidding, the rules are stricter after bid opening because bidders cannot freely revise bids; if wage rates change, the agency may need to seek an extension or, in some cases, cancel the solicitation under the limited rules in FAR 14.404-1.
For negotiated procurements, the contracting officer has more flexibility to continue discussions and proposal evaluation while waiting for a new determination, but must still protect fairness by giving offerors a chance to extend acceptance periods and revise proposals if wage rates change.
A common pitfall is assuming that a new determination can simply be inserted at award without giving bidders or offerors a chance to adjust pricing when wage rates change; that can create protest risk and pricing inequity.
Another practical issue is distinguishing between a determination that changes wage rates and one that only changes the number/date; only the former requires proposal or bid revision opportunities and possible price adjustment consequences.
Official Regulatory Text
(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.