FAR 22.404-8—Notification of improper wage determination before award.
Plain-English Summary
FAR 22.404-8 explains what to do when the Department of Labor notifies the contracting officer that a wage determination was improper before award. It covers two specific DOL notifications: a solicitation that used the wrong wage determination or wrong rate schedule, and a wage determination that has been withdrawn by the Administrative Review Board. The section then tells the contracting officer how to respond in sealed bidding, both when the notice arrives before bid opening and when it arrives after bid opening but before award, including postponing bid opening if needed, amending the solicitation, allowing bidders to revise bids, and delaying award to obtain the correct determination. It also addresses negotiated acquisitions, requiring the contracting officer to delay award if necessary and process the matter as a new wage determination under FAR 22.404-5(c)(3). In practice, this section is about preventing award based on an invalid or incorrect wage determination and ensuring bidders or offerors have a fair chance to compete using the correct labor standards. It protects the integrity of the procurement and helps avoid post-award disputes, bid protests, and wage compliance problems.
Key Rules
DOL notice is immediately effective
If the Department of Labor sends written notice that the solicitation used the wrong wage determination or rate schedule, or that a wage determination was withdrawn by the Administrative Review Board, the notice takes effect immediately if received before award. The contracting officer does not apply the normal timing rules in FAR 22.404-6 for these notices.
Before bid opening, postpone if needed
In sealed bidding, if the improper wage determination notice arrives before bid opening, the contracting officer must postpone bid opening as needed to allow time to obtain the correct determination, amend the solicitation, and let bidders revise their bids. If the correct determination does not change wage rates and no bid revision is needed, the contracting officer only needs to amend the solicitation to show the new determination number and date.
After bid opening, delay award
In sealed bidding, if the notice arrives after bid opening but before award, the contracting officer must delay award if necessary and obtain the proper wage determination when required. The correct determination must then be handled under FAR 22.404-5(b)(2)(i) or (ii).
Negotiated acquisitions follow new-determination procedures
For negotiated acquisitions, the contracting officer must delay award if necessary and process the improper wage determination notice the same way a new wage determination is handled under FAR 22.404-5(c)(3). This ensures the solicitation and award decision reflect the correct labor standards.
Primary site of work controls
The section specifically applies to notifications involving the primary site of the work. That means the contracting officer must focus on the wage determination tied to the main location where the contract work will be performed.
Responsibilities
Department of Labor
Issue written notifications when a solicitation contains the wrong wage determination or rate schedule, or when a wage determination is withdrawn by the Administrative Review Board. These notices are effective immediately upon receipt by the contracting officer before award.
Contracting Officer
Act promptly on DOL notice, determine whether bid opening or award must be postponed or delayed, obtain the correct wage determination if needed, amend the solicitation, and allow bidders or offerors a fair opportunity to revise proposals or bids when required.
Bidders in sealed bidding
Review amended solicitations and revise bids when the contracting officer postpones bid opening or otherwise permits bid amendment because the wage determination changed.
Offerors in negotiated acquisitions
Respond to solicitation changes or revised wage determination information as directed by the contracting officer when award is delayed and the procurement is processed under the new-determination procedures.
Administrative Review Board
Withdraw wage determinations when appropriate, triggering the immediate-effect notification process described in this section.
Practical Implications
A wrong wage determination can stop the procurement clock, so contracting officers need to verify wage data early and monitor for DOL corrections before award.
In sealed bidding, the timing of the notice matters: before bid opening usually means postponement and bid revision rights; after bid opening usually means award delay rather than reopening bids unless the solicitation must be amended.
If the correct wage determination does not change wage rates, the fix may be administrative only, but the solicitation still needs to show the correct determination number and date.
Failing to delay award or amend the solicitation when required can create protest risk, compliance issues under the Davis-Bacon or Service Contract labor standards, and potential award invalidation.
Contractors should watch for solicitation amendments tied to wage determinations because they can affect pricing, labor mix, and whether a bid or proposal remains competitive.
Official Regulatory Text
(a) The following written notifications by the Department of Labor shall be effective immediately without regard to 22.404-6 if received by the contracting officer prior to award: (1) A solicitation includes the wrong wage determination or the wrong rate schedule; or (2) A wage determination is withdrawn by the Administrative Review Board. (b) In sealed bidding, the contracting officer shall proceed in accordance with the following: (1) If the notification of an improper wage determination for the primary site of the work reaches the contracting officer before bid opening, the contracting officer shall postpone the bid opening date, if necessary, to allow a reasonable time to- (i) Obtain the appropriate determination if a new wage determination is required; (ii) Amend the solicitation to incorporate the determination (or rate schedule); and (iii) Permit bidders to amend their bids. If the appropriate wage determination does not change any 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 the notification of an improper wage determination for the primary site of the work reaches the contracting officer after bid opening but before award, the contracting officer shall delay awarding the contract, if necessary, and if required, obtain the appropriate wage determination. The appropriate wage determination shall be processed in accordance with 22.404-5 (b)(2)(i) or (ii). (c) In negotiated acquisitions, the contracting officer shall delay award, if necessary, and process the notification of an improper wage determination for the primary site of the work in the manner prescribed for a new wage determination at 22.404-5 (c)(3).