FAR 22.404-9—Award of contract without required wage determination.
Plain-English Summary
FAR 22.404-9 addresses what happens when a contract is awarded without the wage determination that should have been included at award. It covers three specific error situations: no wage determination at all, a clearly inapplicable general wage determination, or a project wage determination that does not fit because the project description or location was wrong. The section then explains the contracting officer’s immediate duty to correct the mistake, including requesting a wage determination from the Department of Labor if a valid determination was not available on the award date. It also sets out the available remedies: retroactively modifying the contract to add the proper wage determination and making an equitable price adjustment if appropriate, or terminating the contract. In practice, this rule protects labor standards compliance, preserves the integrity of Davis-Bacon or related prevailing wage requirements, and gives agencies a clear corrective path when an award was made with a wage determination defect.
Key Rules
Identify covered award errors
This section applies when the contract was awarded with no wage determination, with a clearly inapplicable general wage determination, or with a project wage determination that is wrong because the project description or location was inaccurate. These are treated as award defects that must be corrected once discovered.
Act immediately on discovery
The contracting officer must initiate corrective action as soon as the error is found. The rule is not discretionary and does not allow the error to remain uncorrected after discovery.
Request DOL determination if needed
If a valid wage determination in effect on the date of award is not available, the contracting officer must promptly request one from the Department of Labor. The request must explain the circumstances and state the contract award date.
Retroactive contract modification
The contracting officer must modify the contract to incorporate the required wage determination retroactive to the date of award. This ensures the contract is treated as though the correct determination had been included from the start.
Equitable price adjustment when appropriate
If adding the wage determination changes contract costs, the contracting officer should make an equitable adjustment to the contract price when appropriate. The adjustment is meant to fairly account for the impact of the retroactive correction.
Terminate if necessary
If the contract cannot be properly corrected, the contracting officer may terminate the contract. Termination is the alternative remedy when modification is not feasible or appropriate.
Responsibilities
Contracting Officer
Immediately upon discovering the missing or incorrect wage determination, initiate corrective action, request a wage determination from the Department of Labor if no valid determination was available at award, and either modify the contract retroactively with any appropriate equitable adjustment or terminate the contract.
Department of Labor
Provide a wage determination when requested by the contracting officer, based on the circumstances described and the contract award date, so the agency can correct the award defect.
Agency
Support prompt correction of the contract award error and ensure the contract is brought into compliance with applicable prevailing wage requirements through modification or termination as directed by the contracting officer.
Contractor
Accept that the contract may be retroactively modified to include the required wage determination and may be subject to an equitable adjustment or termination depending on the corrective action taken.
Practical Implications
This rule is a compliance safeguard: if the wrong wage determination is omitted or misapplied at award, the agency must fix it quickly rather than leaving the contract in a defective state.
Contracting officers should verify the wage determination carefully before award, especially project location and scope, because inaccurate descriptions can make the determination inapplicable.
A retroactive modification can create cost and payroll consequences for the contractor, so pricing, labor rates, and subcontract flowdowns may need immediate review.
If no valid determination existed on the award date, the contracting officer must document the circumstances clearly when requesting DOL guidance; weak documentation can delay correction.
Termination is a fallback remedy, so agencies should assess whether modification is feasible before choosing the more disruptive option.
Official Regulatory Text
(a) If a contract is awarded without the required wage determination ( i.e., incorporating no determination, containing a clearly inapplicable general wage determination, or containing a project determination which is inapplicable because of an inaccurate description of the project or its location), the contracting officer shall initiate action to incorporate the required determination in the contract immediately upon discovery of the error. If a required wage determination (valid determination in effect on the date of award) is not available, the contracting officer shall expeditiously request a wage determination from the Department of Labor, including a statement explaining the circumstances and giving the date of the contract award. (b) The contracting officer shall- (1) Modify the contract to incorporate the required wage determination (retroactive to the date of award) and equitably adjust the contract price if appropriate; or (2) Terminate the contract.