Contractor Responsibility

By the time you get here you have evaluated the quotes (Topic 23), settled on an apparent winner, and satisfied yourself that the price is fair and reasonable (Topic 24). Everything so far has been about the quote. Responsibility is about the firm. FAR 9.103(a) says to award contracts to responsible prospective contractors only, and 9.103(b) says not to award before making an affirmative determination of responsibility. If you cannot get to a clear indication that the firm is responsible, the same paragraph tells you what the determination is: nonresponsibility.

The burden sits with the contractor. FAR 9.103(c) says a prospective contractor must affirmatively demonstrate its responsibility, including, when necessary, the responsibility of its proposed subcontractors. The job on your side is to check that the firm has shown you it can perform, and to ask for more when it has not.

Keep it separate from the other pre-award questions. Whether the quote meets the requirement is technical acceptability. Whether the price is right is price analysis. Whether the firm can perform is responsibility. A fully acceptable quote at a great price from a firm with no technicians is still a no. It runs the other way too: a firm you trust does not get to skip the technical evaluation because you know they are good.

Past performance deserves its own sentence, because it shows up on both sides of the line. As an evaluation factor, past performance asks how well a firm has performed and how much confidence that gives you about this job. You compare quoters on it, and a stronger record can beat a weaker one. Responsibility asks whether the firm can perform at all. That is a threshold every awardee has to clear, and there is no ranking involved. The two draw on the same record (the performance record is standard (c) in the next section), which is why the labels get mixed. If you are comparing firms on how well, you are evaluating. If you are deciding whether one firm clears the bar, you are making a responsibility call, and for a small business that has consequences. Section 5 covers them.

One vocabulary note. "Nonresponsive" is a sealed-bidding term about whether a bid conforms to the invitation. On an RFQ, a quote that fails is not "nonresponsive." Write down what actually failed: the quoted unit is undersized, the firm did not address the emergency-response requirement, the firm cannot finance the first quarter. The reason you write down decides which procedure applies next, and for a small business it decides whether SBA gets involved. Section 5 covers that.

FAR 9.104-1 lists what a prospective contractor has to have. The list works better as seven questions about the specific job, so that is how the table reads. Three of the seven (financial resources, organization and skills, equipment and facilities) come with the words "or the ability to obtain them." FAR 9.104-3(a) says that when a firm does not already have the resources, require evidence that it can get them. A signed lease, a bank letter, a subcontract agreement, or a hiring commitment all count. "We'll sort it out after award" does not.

The other side of the performance record: FAR 9.104-3(b) says to presume a firm nonresponsible if it is or recently has been deficient in contract performance, unless the circumstances were beyond its control or it has taken corrective action. A bad CPARS from last year is a real problem for the firm, and the way it gets resolved is by the firm explaining what changed. Ask.

Scale the evidence to the buy. An $18,000 purchase order for filters does not need a bank letter. A $2 million service contract with a firm nobody in the office has worked with does. FAR 9.105-1(b)(3) adds that, to the extent feasible, financial and performance information gets obtained or updated up to the date of award, which matters when the evaluation ran long.

FAR 9.105-1 says to obtain information establishing that the firm currently meets the standards, generally promptly after receipt of offers, and it lists the sources. In practice the list looks like this.

FAR 9.104-6(c) covers what to do when FAPIIS turns up a termination for default, a prior nonresponsibility finding, or a relevant proceeding: promptly request additional information from the offeror so it can demonstrate its responsibility, and notify the agency official who handles suspension and debarment if the information looks like something that official should see. The FAPIIS entry starts a conversation. The firm's response and your analysis of it are what end up in the file.

Preaward surveys still exist as a tool. The FAR Overhaul reserved 9.106, so there is no longer FAR text on when to request one, but the SF 1403-series forms remain in the GSA forms library, and some offices still ask a contract administration office to look at a plant, an accounting system, or a firm's finances for a large or unusual buy. A survey informs your determination. It does not make it for you.

Affirmative. Your signature is the determination. What the file needs is the support: the SAM and exclusions check with the date, the FAPIIS review and how you weighed it if the buy is above the simplified acquisition threshold (FAR 9.104-6(d)), and whatever else you relied on. FAR 9.105-2(b)(1) says the file includes the documents and reports supporting the determination. If you had to run down a concern, a short memo for record saying what the concern was, what you looked at, and why it is resolved will save the next person from redoing your work. Length is your call. Proportional wins.

Nonresponsibility. When you reject the offer that would otherwise get the award because the firm is nonresponsible, FAR 9.105-2(a)(1) requires a signed determination stating the grounds. Write it so that someone who was not in the room can follow it: the standard at issue, what the evidence showed, what the firm said when you asked, and why that does not resolve it. A skeleton:

DETERMINATION OF NONRESPONSIBILITY

Acquisition:     [solicitation number and requirement]
Offeror:         [legal name, UEI]
Award position:  [why this firm would otherwise receive award]

Standard at issue:          FAR 9.104-1([letter]), [name of standard]
What the evidence shows:    [facts, with sources and dates]
What the offeror said:      [its explanation and anything it provided]
Why that does not resolve it: [your analysis]

Conclusion: [Firm] has not affirmatively demonstrated [standard].
I am unable to make an affirmative determination of responsibility
and determine [Firm] nonresponsible for this acquisition.

Small business status:  [yes or no, and the basis]
Next action:            [SBA referral under FAR 19.204 / next offeror / other]
Attachments:            [list]

[Name], Contracting Officer                          [Date]

Your office may call this a determination, an MFR, or a D&F. The name matters less than the content. FAR 9.105-2 does not ask for a formal Part 1 determination and findings; it asks for a signed determination that states the grounds.

When the firm you found nonresponsible is a small business, the decision does not end with you. FAR 9.103(b) and 9.104-3(d)(1) send you to Part 19, and FAR 19.204 lays out the Certificate of Competency (COC) process. A Certificate of Competency is SBA's statement that, for this specific contract, the firm is responsible on all elements of responsibility. SBA gets to second-guess you here on purpose. Congress built it in.

FAR 19.204(b) sets the scope: the program applies to all Government acquisitions except 8(a) sole-source awards. If you determine the apparent successful small business offeror to be nonresponsible, you must refer that firm to SBA, even if the next acceptable offer is also from a small business, and contracting officers overseas follow it too for U.S. small businesses. Under 19.204(c), a finding that a small business cannot comply with the limitations on subcontracting is treated as an element of responsibility and goes through the same process.

The steps

1. Withhold award and write the determination. The signed nonresponsibility determination from Section 4 is the foundation of the referral. FAR 19.204(d)(1).
2. Refer it to the SBA Government Contracting Area Office serving the area where the firm's headquarters is located, in accordance with agency procedures. In practice that starts with your small business specialist. Agency supplements add routing (DoD's is in DFARS and PGI Part 219). FAR 19.204(d)(2).
3. Send the package. FAR 19.204(e) requires a notice that the firm was determined nonresponsible, specifying the element or elements you found lacking, plus copies of the solicitation and the firm's final offer. SBA's own regulation at 13 CFR 125.5(c) expects more: the abstract of bids or price negotiation memorandum, any preaward survey, your written determination, the technical data package, and whatever else supports the finding. Send the fuller set. A referral without the evidence behind it slows everyone down.
4. Wait 15 business days, counted from the day the Area Office receives a referral that includes all required documentation. FAR 19.204(f). An incomplete package does not start the clock. 13 CFR 125.5(c)(2) allows a longer period if SBA and the contracting officer agree, so if SBA asks for a few more days, that is a conversation with your small business specialist rather than a hard wall.
5. SBA reviews. SBA notifies the firm and invites it to apply. Under 13 CFR 125.5(f) the review is not limited to the elements you cited; SBA may look at all of them. FAR 19.204(g).
6. Act on the answer. COC issued: award to the firm. FAR 19.204(i) makes the COC final on all elements of responsibility, and the firm cannot be required to meet any other responsibility requirement. You may still decline to award for reasons unrelated to responsibility. COC denied: document it and proceed with the next offeror. No COC within the 15 business days: FAR 19.204(j) directs award to another appropriately selected and responsible offeror. Check with the small business specialist before acting on that one, since an agreed extension moves the date.

If new information convinces you the firm is responsible before award is made, FAR 19.204(h) has the off-ramp: reverse the determination, notify SBA, withdraw the referral, and proceed to award.

What counts as a responsibility rejection

SBA's regulation at 13 CFR 125.5(a)(2) reaches further than the word "nonresponsible." Referral is required when you deny award to the apparent successful small business on the basis of responsibility, when you refuse to consider a small business after evaluating it on a non-comparative (pass/fail) basis under one or more responsibility-type factors such as experience or past performance, and when you refuse to consider it because it failed a definitive responsibility criterion stated in the solicitation. Calling a pass/fail experience screen "technical" does not change what it is. GAO sustained a protest on exactly that point in Phil Howry Co., B-291402.3 (2003), where a rejection on past performance grounds was in substance a nonresponsibility finding made without an SBA referral. A comparative evaluation, where one firm's stronger past performance beats another's, is a different animal and stays with you. That boundary is Advanced-track material.

FAR 9.102(a)(2) applies the subpart to contractors located outside the United States unless applying it would be inconsistent with the laws or customs where the contractor is located. Being deployed changes what the evidence looks like, and the requirement to have some comes with you.

The local firm quoting on generator maintenance has no CPARS, no FAPIIS entry, and possibly no SAM registration. FAR 4.203-1(b)(5)(i) exempts contracts awarded by deployed contracting officers supporting military operations from the SAM requirement, and (b)(7) exempts actions at or below $40,000 with foreign vendors for work outside the United States when registration is impractical. Two things come with those exceptions: under 4.203-1(e) you still collect the offeror's identifying information and entity-level representations when the quote comes in, and under 4.203-1(d), if practical, you modify the contract later to require registration.

With the databases empty, the evidence is what you can see and confirm:

• Go look. The shop, the trucks, the parts on the shelf, the people who will do the work. A site visit answers (e) and (f) faster than any document, and it is the kind of verifiable knowledge that FAR 9.105-1(c)(1) has in mind. Take a technical expert with you if you can.
• Ask who else they work for. The previous rotation's contracting officer, the civil engineer or logistics customer who has watched them perform, host-nation or coalition partners on the same installation. Write down who told you what and when.
• Ask about money and lead times. Local firms often need mobilization funds or have long supply chains for parts. If the firm says a partner in the capital will supply the compressor, get the partner's name and a document.
• Run the eligibility checks that exist. SAM exclusions still apply to foreign vendors. Theater vendor vetting, base access, and local business licensing are part of (g) whether or not SAM is in play. Your theater contracting guidance will say what the process is.
• Record the limits. Note what you could not verify, what you tried, and what you did instead. A dated memo reading "visited the shop on 14 Mar, saw two service trucks and a parts inventory sufficient for the first month, spoke to the owner and lead technician through an interpreter" is a responsibility file.