[Federal Register Volume 74, Number 52 (Thursday, March 19, 2009)]
[Rules and Regulations]
[Pages 11827-11828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5873]





48 CFR Part 22

[FAC 2005-31; FAR Case 2008-014; Item III; Docket 2009-0006; Sequence 
RIN 9000-AL17

Federal Acquisition Regulation; FAR Case 2008-014, Amendments to 
Incorporate New Wage Determinations

AGENCIES:  Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION:  Final rule.


SUMMARY:  The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on a final rule 
amending the Federal Acquisition Regulation (FAR) to preclude a 
possible scenario where a contracting officer has to unnecessarily 
reevaluate proposals already eliminated from a competition.

DATES: Effective Date: April 20, 2009.

FOR FURTHER INFORMATION CONTACT:  For clarification of content, contact 
Mr. Ernest Woodson, Procurement Analyst, at (202) 501-3775. For 
information pertaining to status or publication schedules, contact the 
FAR Secretariat at (202) 501-4755. Please cite FAC 2005-31, FAR case 


A. Background

    The Department of Labor (DOL) regulations set forth at 29 CFR 
1.6(c)(2) and (3) require that, when contracting by negotiation, the 
contracting agencies must place modified wage determinations (WDs) into 
solicitations and contracts if the WDs are received before contract 
award. FAR 22.404-6(c) establishes that when contracting by 
negotiation, all written actions modifying WDs received by the 
contracting agency before contract award, or modifications to general 
WDs published on the Wage Determination Online (WDOL) before award, 
shall be incorporated into the solicitation. If an effective WD is 
received by the contracting officer before award, the contracting 
officer shall follow the procedures in FAR 22.404-5(c)(3) or (4). FAR 
22.404-5(c)(3) covers contracting by negotiation when the closing date 
has passed; and it requires that a new WD with a changed wage rate must 
be furnished as an amendment to all prospective offerors that submitted 
proposals. There is an apparent inconsistency between this and FAR 
15.206(c) which requires that amendments issued after closing shall be 
issued to all offerors that have not been eliminated from the 
    This final rule amends the Federal Acquisition Regulation to 
correct the inconsistency at FAR 22.404-5(c)(3) by changing the 
language to indicate a contracting officer shall amend solicitations to 
incorporate new wage determinations and furnish the wage rate 
information to all offerors that have not been eliminated from the 
competition, if the closing date for receipt of offers has already 
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act does not apply to this rule. This 
final rule does not constitute a significant FAR revision within the 
meaning of FAR 1.501 and Public Law 98-577, and publication for public 
comments is not required. However, the Councils will consider comments 
from small entities concerning the affected FAR Part 22 in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 601, et seq. (FAC 2005-31, FAR case 
2008-014), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply, because the final rule 
does not impose information collection requirements that require the 
approval of the Office of Management and Budget under 44 U.S.C. Chapter 
35, et seq.

List of Subjects in 48 CFR Part 22

    Government procurement.

    Dated: March 13, 2009.
Al Matera,
Director, Office of Acquisition Policy.

Therefore, DoD, GSA, and NASA amend 48 CFR part 22 as set forth below:


1. The authority citation for 48 CFR part 22 continues to read as 

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

[[Page 11828]]

22.404-5  [Amended]

2. Amend section 22.404-5 in paragraph (c)(3) by removing ``submitted 
proposals'' and adding ``have not been eliminated from the 
competition'' in its place.
[FR Doc. E9-5873 Filed 3-17-09; 8:45 am]