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I am getting ready to award a task order under Connections II for an enterprise land mobile radio system. I wrote Davis Bacon and Service Contract Acts into the RFP. The Contractor submitted a proposal stating the following:

"Our subcontractors have assured us that none of their employees supporting these requirements are covered by the Davis Bacon Act. However, if it turns out that any of their next tier subcontractors will be covered under this Act, they will comply with all the requirements of the Davis Bacon Act."

According to FAR 22.404-9

22.404-9 -- Award of Contract Without Required Wage Determination.

(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.

My question is, If the exclusion of Davis Bacon is an error made by the Contractor,

1. Is the Government required to comply with (B)(1) above and incorporate retroactively, or

2. Because of the Contractor's error, can the Government, prior to award, inform the Contractor that if there is a change requiring DB, the Government will incorporate latest WD without price change, and should there be a WD revision during the remainder of the requirement, a change in pricing may be applicable at that time?

3. As this will only be incorporated at the time it is determined DB is going to be required, wouldn't application of DB at the time of the mod to add DB WD be appropriate?

4. My understanding is that Davis Bacon is the responsibility of the Prime Contractor under Connections II. Is it possible that the second tier subcontractor be allowed to comply with all the requirements of the Davis Bacon Act?

Because the above is silent on fault, I assume Question 1 is applicable and I can't find anything that speaks to Question 4.

Thank you

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Who defines the requirement? The Government or the contractor?

Who writes the solicitation? The Government or the contractor?

Who writes the task order? The Government of the contractor?

Hint: The Government for all three.

If you're the contracting officer, you decide if the contract/task order [ ] is or [ ] is not for construction.

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