When a oral RFP is conducted for a emergency construction services is the bacon wages automatically assumed in the oral RFP or do we need to hand deliver the bacon wages?
In order to answer the questions, a few FAR references are provided in 1 -5
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Typically, contracts or purchase orders issued as a result of "emergency"
situations are award as a result of "unusual and compelling" circumstances
and are awarded as undefinitized contractual actions or unpriced purchase
orders. These undefinitized actions are used because one or more terms and
conditions of the contract, including price, are unknown at the time of award.
However, the necessity to allow the contractor to perform immediately is so urgent
that the Government is willing to accept the increased cost risk.
In the situation encountered, the problem is more difficult since a purchase
order was awarded as a result of the emergency situation. Purchase orders
by FAR definition are not binding contracts unless actions in FAR 13.302-3 are
Davis Bacon wage determinations are not automatically assumed to be included
in "oral RFPs" as there are unknowns that will affect the contractor
pricing. The unknowns include the prevailing wage rates that the Government will
require the contractor to pay employees. Without a copy of the Department of
Labor wage determination, a contractor cannot realistically provide a firm
fixed price proposal to the Government. Therefore, you have at least two
choices: award an undefinitized contractual action or unpriced purchase
order or provide the contractor with all the information including wage
rates that requires compliance. Inclusion of the Davis Bacon wage rates is a
contracting officer responsibility.
1) FAR 2.101 Definitions: "Purchase order," when issued by the Government,
means an offer by the Government to buy supplies or services, including
construction and research and development, upon specified terms and
conditions, using simplified acquisition procedures
2) FAR 22.403-1 -- Davis-Bacon Act.
The Davis-Bacon Act (40 U.S.C. 3141 et seq.) provides that contracts in
excess of $2,000 to which the United States or the District of Columbia is a party
for construction, alteration, or repair (including painting and decorating)
of public buildings or public works within the United States, shall contain a
clause (see 52.222-6) that no laborer or mechanic employed directly upon the
site of the work shall receive less than the prevailing wage rates as
determined by the Secretary of Labor.
3) FAR 13.302-2 -- Unpriced Purchase Orders.
(a) An unpriced purchase order is an order for supplies or services, the
price of which is not established at the time of issuance of the order.
(b) An unpriced purchase order may be used only when --
(1) It is impractical to obtain pricing in advance of issuance of the
purchase order; and
(2) The purchase is for --
(i) Repairs to equipment requiring disassembly to determine the nature and
extent of repairs;
(ii) Material available from only one source and for which cost cannot
readily be established; or
(iii) Supplies or services for which prices are known to be competitive, but
exact prices are not known (e.g., miscellaneous repair parts, maintenance
(c) Unpriced purchase orders may be issued on paper or electronically. A
realistic monetary limitation, either for each line item or for the total
order, shall be placed on each unpriced purchase order. The monetary
limitation shall be an obligation subject to adjustment when the firm price
is established. The contracting office shall follow up on each order to ensure
timely pricing. The contracting officer or the contracting officer's
designated representative shall review the invoice price and, if reasonable
(see 13.106-3(a)), process the invoice for payment.
4) FAR 13.302-3 -- Obtaining Contractor Acceptance and Modifying Purchase
(a) When it is desired to consummate a binding contract between the parties
before the contractor undertakes performance, the contracting officer shall
require written (see 2.101) acceptance of the purchase order by the
5) DFARS 217.74(d) " Undefinitized contract action" means any contract
action for which the contract terms, specifications, or price are not agreed upon
before performance is begun under the action.