Overview
FAR 9.105 prescribes the specific procedures and sources of information Contracting Officers (CO) must use to determine if a prospective contractor is responsible before awarding a contract. It also establishes strict documentation and reporting requirements for nonresponsibility determinations, including mandatory entries into the Federal Awardee Performance and Integrity Information System (FAPIIS).
Key Rules
- Information Gathering: The CO must obtain sufficient information to satisfy the standards in FAR 9.104, generally focusing on the low bidder or offerors within the competitive range.
- Mandatory Sources: COs must review FAPIIS (including SAM and CPARS data) and may supplement this with preaward surveys, commercial supplier reports, and interviews with the contractor’s previous customers or financial institutions.
- Implied vs. Explicit Determinations: Signing a contract serves as an implicit determination of responsibility; however, a determination of nonresponsibility requires a signed, written document placed in the contract file stating the specific basis for rejection.
- Small Business Referrals: If a CO finds a small business nonresponsible, they must refer the matter to the Small Business Administration (SBA) for a Certificate of Competency (COC) and must abide by the SBA’s final decision.
- FAPIIS Reporting: Nonresponsibility determinations for contracts exceeding the Simplified Acquisition Threshold (SAT) must be entered into FAPIIS within three working days if the basis was a lack of satisfactory performance or integrity/ethics.
- Confidentiality: Preaward information and survey reports are generally for official government use only and are protected from disclosure outside the government, though they may be discussed with the prospective contractor.
Practical Implications
- Proactive Performance Management: Because COs are legally mandated to check FAPIIS and CPARS, contractors must ensure their past performance records are accurate, as a single negative entry regarding integrity or performance can trigger a formal nonresponsibility finding.
- Procurement Delays: For small businesses, a nonresponsibility determination triggers an automatic SBA referral process, which can extend the award timeline significantly while the SBA evaluates the firm's capabilities.
- File Integrity: COs must be meticulous in documenting the "why" behind a nonresponsibility finding to withstand potential protests and to meet the 3-day FAPIIS reporting deadline for integrity-based rejections.