E9-5873. 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 [phone]. For information pertaining to status or publication schedules, contact the FAR Secretariat at [phone]. Please cite FAC 2005-31, FAR case 2008-014.

SUPPLEMENTARY INFORMATION:

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 competition.

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 passed.

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:

PART 22—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION

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

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

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.